The “Second Look” Doctrine, Part I

Consider the following scenario. The police arrest Sam Suspect and charge him with murdering his wife, Vicky Victim. The arrest is based on a statement from Frank Friend, one of Sam’s buddies. According to Frank, Sam told him that he was having an affair and killed Vicky to get her “out of the way.” Sam is searched incident to arrest; the search focuses mainly on officer safety, and no weapons are found. When Sam is booked into jail, his property is taken from him for safekeeping. The property includes a cell phone, which the police do not examine in detail at that point.

A week later, the police believe that they have identified the woman with whom Sam was having the affair: Polly Paramour. An officer wants to search Sam’s cell phone to see how much contact there was between Sam and Polly, whether Sam contacted Polly immediately after the murder, whether Sam sent any incriminating messages to Polly, and the like. Can the officer conduct the search without a warrant?

I’ve been asked variants of this question several times over the past few weeks. I’ll give the basic answer today, and in a follow-up post sometime in the next few days, will explore a few wrinkles.

The basic answer is yes, the officer can search the phone. I’m assuming for purposes of this answer that the police could have searched the phone incident to arrest. That isn’t a completely settled issue, as I discuss in this post, but on the facts above, I think the police probably could have searched the phone incident to arrest. And if that’s so, then the officer can search the phone a week later. The seminal case in this area is United States v. Edwards, 415 U.S. 800 (1974), in which the Court upheld a search of the defendant’s clothes a day after he had been arrested. Partly, the Court concluded that the arrest and booking process was ongoing, and that portion of the opinion isn’t on point for present purposes. But the Court also said this:

The police had lawful custody of [the defendant] and necessarily of the clothing he wore. When it became apparent that the articles of clothing were evidence of the crime for which [the defendant] was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered. . . . Indeed, it is difficult to perceive what is unreasonable about the police’s examining and holding as evidence those personal effects of the accused that they already have in their lawful custody as the result of a lawful arrest. . . . [T]he effects in [an arrestee’s] possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and [booking], on the one hand, and the taking of the property for use as evidence, on the other. This is true where the clothing or effects are immediately seized upon arrival at the jail, held under the defendant’s name in the ‘property room’ of the jail, and at a later time searched and taken for use at the subsequent criminal trial [and where, as in Edwards, the items are left in the arrestee’s possession].

The rule of Edwards is sometimes called the “second look” doctrine, because in effect it holds that if the police looked at — or could have looked at — an item during the arrest and booking process, and they’re still in possession of the item, they can take a second look at it later without running afoul of the Fourth Amendment. As it applies to Sam, since the police could have searched his cell phone when he was arrested, and since they’re still in possession of it, the curious officer can search it without a warrant.

As I mentioned, there are some wrinkles to the doctrine that I’ll explore in a later post. As a teaser, here’s one: the Edwards Court mentioned that the clothing was “evidence of the crime for which [the defendant] was being held.” But what if an officer wanted to search Sam’s phone not for evidence related to the murder, but for evidence of an unrelated crime, like possession of child pornography? Would that search be a permissible second look? Stay tuned. [Editor’s Note: the follow-up post is here.]