Saturday, March 3, 2012

7th Cir. okays cell phone search at arrest for device's number

The Seventh Circuit recently held that a search of a cell phone to obtain the phone's number at arrest was a valid search under the Fourth Amendment. United States v. Flores-Lopez, 2012 WL 652504 (7th Cir. 2012).

The defendant was arrested during a drug bust, and his cell phone was searched at arrest in order to determine the telephone's number which was later used to subpoena the call history. On appeal, the defendant argued that the search of the phone was unreasonable, making the call history fruit of an illegal search.

Judge Posner, the opinion's author, made the comparison to diaries - noting that if an officer searched a diary at arrest and found it to be personal but kept reading anyway, that search might be unconstitutional. He specified that even a $14.99 phone from Walgreens (actually citing a phone on Walgreens' website) contains a great deal of information, similar to a diary but with the potential to hold more.

Nonetheless, the search of the cell phone in this case was only for a phone number. It was relevant to the crime and did not require a search of the personal information on the phone. Since law enforcement may open the diary to obtain the owner's address, they should also be able to obtain the number from the phone. Likewise, since they cannot "peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone."

Also, because of the potential for wiping the phone - whether locally or remotely, "it is imperative that law enforcement officers have the authority to immediately 'search' or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence." Posner also suggested that a more intensive search might be permissible under certain circumstances as well.


Post a Comment