Searching Cell Phones Incident to Arrest

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Nearly 90% of American adults have cell phones. When one of those cell phone users is arrested, may police search their mobile phone incident to arrest? The Fourth Circuit recently answered that question in the affimative. See United States v. Murphy, __ F.3d __, 2009 WL 94268 (4th Cir. Jan. 15, 2009). The defendant in Murphy was a passenger in a car that was stopped for speeding. He gave a false name to the police, they figured it out, and he was arrested for obstruction of justice. Counterfeit currency and drug-related items were found in the car. The police searched Murphy’s cell phone incident to arrest, and obtained phone numbers they later used to develop additional evidence against Murphy. Murphy was charged with drug and currency offenses, and moved to suppress, arguing that the police should have obtained a warrant to search the phone. Neither the district court nor the court of appeals agreed.

The Fourth Circuit said that the “manifest” need to preserve evidence justified police in retrieving “text messages and other information from cell phones and pagers seized incident to an arrest.” There’s some logic here: over time, new messages and calls will “crowd out” earlier ones from the phone’s memory, effectively destroying potentially relevant evidence. Murphy agreed that when a phone has a small storage capacity, the need to preserve evidence justifies a warrantless inspection of a cell phone, but he contended that when a phone has a large storage capacity, the risk of losing critical evidence is reduced, and the privacy interest of the phone’s owner is increased, so a warrant should be required. The court rejected this argument as unworkable — what would count as a “small” or “large” capacity, and how would an officer know the capacity of a phone before searching it?

Appellate courts are struggling to apply Fourth Amendment rules to new technologies, and decisions like Murphy often raise as many questions as they provide answers. For example, could the police search the “address book” of Murhpy’s phone incident to arrest, even though it is not subject to crowding out? What if Murhphy had been carrying a Blackberry? A laptop? Could those be searched incident to arrest? What if the police can obtain all call information and text messages from the service provider, removing the crowding out/exigency justification? I’m keenly interested in this area of the law, and welcome feedback and comments about what officers are doing in the field and how courts are responding.

9 comments on “Searching Cell Phones Incident to Arrest

  1. We have been searching cell phones in drug cases, incident to arrest, for some time now. We’ve purchased a software package that allows us to connect to the phone to download call history, contact lists, photos, video, etc. It is my understanding that as long as the phone is still powered on that there is an exigency in retrieving information before contents are overwritten or the batteries expire, since some phones have security measures put in place by the owner that require an “unlock code” to access the phone when it is powered on. We’ve been operating under the assumption that once the phone is turned off, the information in it is no longer in danger of being lost or overwritten and that a search warrant would be required to power it up again to retrieve the information. Are we on track with that assumption or would we still be OK with turning the phone off to save power/prevent new messages from overwriting old ones and then turning it back on to retrieve contents without a search warrant?

  2. I have the same questions with CR Ridley :Are we on track with that assumption or would we still be OK with turning the phone off to save power/prevent new messages from overwriting old ones and then turning it back on to retrieve contents without a search warrant?
    will you please give us a reply?
    Milliom thanks
    Emily from http://www.dealdigg.com

  3. I’ve been doing this for a while and have taken numerous classes that have covered the topic. Here’s what I have been told and what I have been doing: if you’re arresting someone and you believe there is evidence related to a crime stored in that cell phone, after an arrest you can search and dump the contents of that cell phone without a warrant until the booking process of the perp is complete. Once they are completely booked into the jail, you need to get a search warrant. I read this Murphy case law and it looks like it gives us in law enforcement a little more flexibility, but I am not going to take any chances. I am not going to risk losing a case over this. I’ll just get a SW to be safe.

  4. Agreed SW is smart. just incase. What is the name of the software package that allows connecting to the phone to download call history, contact lists, photos and videos? Comes with a multi-purpose adapter?

  5. Get a Search Warrant! I still do not understand why that is such a big deal. You eliminate most any issues with searching, and it is really not that big of a deal to get one in the grand scheme of things. Trust me, it is much better to spend the extra two hours to get the warrant than it is to spend a day in a suppression hearing having to explain your actions.

  6. I have the sneaking suspicion that this holding will ultimately be expanded to include situations where there is no “reasonable suspicion” to believe that the cell phone includes incriminating information.

  7. Disgusting. The war on drugs has consistently been used to erode constitutional protections. It’s truly disgusting. I’ve never done any drugs in my life. I just recognize it happening. It’s sad.

  8. http://www.wbtv.com/story/24589484/report-man-charged-after-sexual-explicit-photos-of-him-young-girl-found-on-phone

    Interested to hear what others think about the 4th amendment implications in this scenario in light of Murphy. Isn’t the “crowding out” theory articulated by the court in Murphy now vitiated by law enforcement’s use of Faraday bags (which preserve evidence on cell phones by preventing them from receiving a signal thus eliminating the “overcrowding” concern)?

  9. ? If I give/loan a friend a cell phone and they then recored a conversation/ argument on the cell phone I gave , can they turn the phone over to police and say it is their cell phone/ which would be a lie an can the police then search the phone without a subpoena ?

    Also is then that coversation even though NC is a one party consent state on recoredings , I did not give the friend any permission to install an app an recored our conversation .

    Is the recording and/or findings on phone admissable

    Thanks

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