Posted On: February 3, 2008 by Mary Frances Prevost

THE iPHONE MEETS THE FOURTH AMENDMENT

To date, fewer than a dozen courts across the country have addressed searches of cell phones incident to arrest.

The Fifth Circuit’s recent 2007 in United States v. Finley is representative. Police arrested Finley after a staged drug sale. The police then searched Finley incident to arrest and found a cell phone in his pocket. One of the investigating officers searched through the phone’s records and found text messages that appeared to relate to drug trafficking. One incoming text message said “So u wanna get some frozen agua,” a common term for methamphetamine. Another text message said “Call Mark I need a 50,” a likely reference to asking for $50 worth of narcotics. Finley was convicted of aiding and abetting drug possession with intent to distribute.
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In United States v. Park et al. , the United States District Court for Northern District of California reviewed a case where several subjects, including Edward Park, were arrested as San Francisco officers were about to execute a search warrant. Several individuals, including Park showed up at the location of the warrant. These subjects were detained while the warrant was executed and arrested after the police found significant amounts of marijuana growing at the location.

When the subjects were brought to the station there cellular telephones were seized. After one to one and a half hours the phones were searched. During a search of each phone, evidence was found in the address book which implicated the subjects in the illicit operation. The government sought to use this information in the prosecution of these subjects while the defense sought to suppress the evidence from the phones.

In reviewing the search of the phones the trial court noted: “Neither the Supreme Court nor the Ninth Circuit has addressed whether officers may search the contents of a cellular phone as a search incident to arrest, and the Court is aware of only one circuit court case on the issue, United States v. Finley, 477 F.3d 250 (5th Cir. 2007).” The court then distinguished this case from Edwards on the grounds that the cellular telephones were possessions within the arrestees control rather than that which is on their person.

In doing so, the court cited the United States Supreme Court decision in U.S. v. Chadwick in which a footlocker seized from an auto was searched without a warrant. The Supreme Court ruled in Chadwick that a warrant should have been obtained once the item was in police custody. The Supreme Court subsequently overturned the Chadwick rule in California v. Acevedo. In a footnote the court in this case attempted to distinguish Acevedo due to the fact that the footlocker was taken from a vehicle and the search was based in probable cause rather than incident to arrest.

The court in this case concluded that the investigators should have obtained a warrant before searching the contents of the phone back at the station. The court left open whether the officers could have searched the phone at the time of the arrest. Some other courts have not agreed with this Federal trial court.

Now, a college professor has authored an article disputing the Park line of cases and suggesting that courts and legislatures adopt stronger protections against searches of iPhones. See below.

The iPhone Meets the Fourth Amendment

ADAM M. GERSHOWITZ
South Texas College of Law
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January 15, 2008

Abstract:
Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence. The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes. This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices.

Click HERE to get article.


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