Police Blotter: Cops need warrant to search cell phone?

Alleged medical-marijuana distributors arrested in San Francisco say police should have obtained warrant for search of cell phone.
Written by Declan McCullagh, Contributor
Police Blotter is a weekly CNET News.com report on the intersection of technology and the law.

What: San Francisco Police Department arrests alleged medical-marijuana distributors and searches a T-Mobile Sidekick without a search warrant.

When: U.S. District Judge Susan Illston in the northern district of California rules on May 23.

Outcome: Warrantless search violates Fourth Amendment.

What happened, according to court documents:
As part of a marijuana investigation, the San Francisco Police Department's narcotics squad conducted a raid in December 2004. Once inside the building, they found marijuana and equipment used to grow it, and arrested five people.

Edward Park, Brian Ly and David Lee were among those arrested. (All three also were, confusingly, targeted by federal police a few months later and charged with felony conspiracy to cultivate and distribute marijuana plants--charges that appear to represent the U.S. Drug Enforcement Agency's attempt to shutter medical-cannabis dispensaries.)

What makes this case relevant to Police Blotter is that the SFPD arrested the three men, took them to the city's Taraval Police Station for booking, then searched their mobile phones without a warrant. The search warrant did not mention cell phones.

When the four men arrived at Taraval, their belongings were placed in so-called property envelopes. Copies of the "Booking Form" and "Field Arrest Card" were attached to the outside. SFPD Inspector David Martinovich searched Lee's mobile phone and ordered Inspector Martin Halloran to look through the phones owned by Park and Ly.

Martinovich, who works in the SFPD's narcotics division, would later say, "I believed that a search of the cellular telephones at the police station during the booking process was permissible as a booking search (PDF)." He admits perusing Lee's T-Mobile Sidekick II a few hours after the arrest and writing down the contents of the address book before the Sidekick was placed in the property envelope.

What's worth noting is that DEA agent Christopher Fay seemed to be trying to conceal the details of the warrantless search from the courts. In an April 2005 affidavit, he glossed over how it was done, saying only, "These cellular telephones were seized and surreptitiously searched incident to the arrests, and were then returned to the owners."

Park, Ly and Lee filed a motion (PDF) saying the warrantless search and seizure violated the Fourth Amendment and that any evidence obtained must be discarded.

Warrantless searches, of course, generally violate the Fourth Amendment. But the Supreme Court has allowed an exception permitting warrantless searches at the time that someone is being arrested, with the thinking being that police should be allowed to look for weapons or items that could be linked to an alleged crime. A second exception to the warrant requirement is a "booking search" that deals with establishing an inventory of the defendant's possessions.

The U.S. Department of Justice, which is prosecuting the defendants, replied by comparing the delayed search (PDF) to looking through the contents of an arrestee's wallet (which is permissible) versus looking through his footlocker (which is not).

This is a key privacy issue. Mobile phones and PDAs are growing smaller and more capable, and can reveal intimate details of someone's personal life. Few people use encryption, which can conceal the contents of communications from thieves and police.

Under what circumstances cell phones can be searched without a warrant remains an unresolved question in the courts. A Police Blotter installment last month reported that a federal judge ruled that a cell phone search at the time of an arrest was OK. So did the Fifth Circuit in a case involving cell phone call records and text messages indicating narcotics use.

U.S. District Judge Susan Illston, however, ruled that the SFPD's warrantless search was not permissible. She noted that the search did not take place during an arrest and that handheld computers can hold all sorts of personal information.

Postscript: In November 2006, nearly two years after the SFPD raid, the San Francisco Board of Supervisors voted to effectively decriminalize the growing and selling of marijuana by saying it would be the lowest law enforcement priority for city police.

Excerpts from Judge Illston's opinion:
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 (5th Cir.2007).

In Finley, officers arrested the defendant and a passenger in the defendant's car after effecting a traffic stop. Officers seized the defendant's cellular phone at the time of the arrest and then transported the defendant to the passenger's residence; while at the residence, officers searched the call records and text messages on the defendant's cellular phone, and questioned him about those records and messages.

This court finds, unlike the Finley court, that for purposes of Fourth Amendment analysis, cellular phones should be considered "possessions within an arrestee's immediate control" and not part of "the person." This is so because modern cellular phones have the capacity for storing immense amounts of private information.

Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, e-mail, video and pictures. Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through e-mail and text, voice and instant messages.

Any contrary holding could have far-ranging consequences. At the hearing, the government asserted that, although the officers here limited their searches to the phones' address books, the officers could have searched any information--such as e-mails or messages--stored in the cell phones.

In addition, in recognition of the fact that the line between cell phones and personal computers has grown increasingly blurry, the government also asserted that officers could lawfully seize and search an arrestee's laptop computer as a warrantless search incident to arrest.

The searches at issue here go far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence. Inspector Martinovich stated that he initiated the searches because "evidence of marijuana trafficking and/or cultivation might be found in each of the cellular telephones."

Officers did not search the phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence. Instead, the purpose was purely investigatory. Once the officers lawfully seized defendants' cellular phones, officers could have sought a warrant to search the contents of the cellular phones.

The court finds that the government has not met its burden to show, by a preponderance of the evidence, that it is standard police practice to search the contents of a cellular phone as part of the booking process. Indeed, the government has not articulated any reason why it is necessary to search the contents of a cell phone in order to fulfill any of the legitimate governmental interests served by a booking search: namely, to deter theft of arrestees' property and false claims of theft by arrestees, and to identify contraband and other items.

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