A district court held that a search of a memory card was unconstitutional after the card was found in the arrestee's pocket upon arrest. United States v. Jenkins, 2011 U.S. Dist. LEXIS 96296 (N.D.W.V. 2011).
Police were following the defendant, believing he had stolen a four-wheeler. He was ultimately caught, and law enforcement noticed a digital camera nearby. The defendant immediately declared that it was not his. The court found a search of the camera and the memory card inside to be constitutional because the camera had been abandoned.
Upon arrest for fleeing an officer and DUI, police located a second memory card in the defendant's pocket which was found to contain child pornography. The defense argued that because the crime of the stolen four-wheeler had already been solved and because the card was not connected to the camera, the defendant had a reasonable expectation of privacy in the memory card. The court agreed, finding that a search was only permissible with a warrant.
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