I’m still not done with the last round of court of appeals and North Carolina Supreme Court opinions, but I found a little gem in one of the high court’s opinions. For the first time, the state supreme court has addressed the search of a cell phone incident to arrest.
I’ve blogged about this issue before, specifically addressing a Fourth Circuit case that considered the question in some detail. And I’m maintaining an informal list of cases on point from other jurisdictions, one version of which is available here. (Most, but not all, of those cases have upheld such searches.)
State v. Wilkerson was a capital case. The defendant was a drug dealer, and he and some accomplices shot and killed two drug users in a dispute over $30 worth of drugs. After the defendant was arrested, an officer confiscated his cell phone and searched it. The phone’s serial number helped connect the defendant to the murders. The defendant later moved to suppress, arguing that there was no basis for the officer’s seizure of the phone, but the trial court found that the phone was properly seized and searched incident to arrest. (It also found that the defendant consented, but the reviewing court didn’t address that ruling.) The supreme court affirmed, holding simply that “the seizure and the search of the telephone were properly accomplished pursuant to a lawful arrest.”
There are a number of tricky issues regarding cell phone searches that didn’t come up in this case. For example, while police may need to search a phone’s call log quickly, before new calls “crowd out” records of other calls, no similar argument supports the need to search a phone’s address book. Likewise, the court didn’t address whether Arizona v. Gant bears on cell phone searches — in other words, whether it limits officers’ ability to search phones that have been secured and removed from the suspect’s reach. But at least our appellate courts’ toes are in the water of cell phone searches. More cases, surely, to follow.