The Forbes Magazine website recently featured a nifty color-coded U.S. map showing which states have upheld the search of a cell phone incident to arrest, which states have found such searches unlawful, and which states have no precedent yet.
By clicking on the map, you can see a court decision that helped determine the state’s color. Not included on the Forbes map are two cases — U.S. v. Santillan and U.S. v. Deans — which I’ve incorporated into the list below.
Courts that have upheld searching a cell phone incident to arrest are presently in a majority. They include:
1.) Gracie v. State, Alabama Court of Appeals (2011). Warrantless search for evidence of an accomplice in suspected robber’s cell phone’s call log and text messages following his arrest was lawful where suspect was seen using phone immediately before his arrest.
2.) People v. Diaz, California Supreme Court (2011). In arrest for sale of ecstasy, search of defendant’s cell phone’s text message folder at the detention facility 90 minutes later was a lawful search incident to arrest because the phone was personal property immediately associated with the defendant’s person. See also People v. Nottoli, California Court of Appeals (2011), which cited Diaz and Gant to uphold the warrantless search of defendant’s smart phone in the passenger compartment of his car when he was arrested for DUI.
3.) People v. Taylor, Colorado Court of Appeals (2012). Court upheld the search of a defendant’s cell phone’s call history incident to arrest after the defendant was observed placing a call in conjunction with telling undercover officers he could call someone to sell them drugs.
4.) Hawkins v. State, Georgia Supreme Court (2012). Search of defendant’s cell phone found in her purse during her arrest for text messages exchanged with undercover officer about the purchase of drugs was lawful search incident to arrest.
5.) State v. James, Kansas Court of Appeals (2012). Search of suspect’s cell phone’s text messages for evidence associated with the discovery of a large bag of marijuana found in suspect’s care was part of a valid search incident to arrest.
6.) Commonwealth v. Phifer, Massachusetts Supreme Court (2012). Search of call history on cell phone of suspect arrested on outstanding warrants related to drug charges and seizure of number of a person known to police as a drug user was lawful search incident to arrest. Commonwealth v. Berry, Massachusetts Supreme Court (2012). Search of cell phone of suspect arrested after seen by police selling heroin and seizure of last phone number dialed, which reached the customer, was lawful search incident to arrest.
7.) 4th Circuit Federal Court of Appeals (encompasses Maryland, North Carolina, South Carolina, Virginia, West Virginia). U.S. v. Murphy (2009). Murphy, the passenger in a car stopped for speeding, was arrested for obstruction when police determined he’d given them a false name. After counterfeit currency and drug-related items were found in the car, police searched Murphy’s cell phone and obtained phone numbers they later used to develop additional evidence against him. Court upheld it as lawful search incident to arrest and necessary to preserve incriminating evidence.
8.) 5th Circuit Federal Court of Appeals (encompasses Louisiana, Mississippi, Texas). U.S. v. Curtis (2011). Relying on its earlier decision in U.S. v. Finley (2007) [a reverse sting drug case], court upholds search of the cell phone of a suspect incident to his arrest for a state crime of false statement to obtain credit and admission of incriminating evidence in a federal trial on criminal conspiracy to commit mortgage fraud.
9.) 7th Circuit Federal Court of Appeals (encompasses Illinois, Indiana, Wisconsin). U.S. v. Flores-Lopez (2012). Search of cell phone seized in arrest of suspect during a methamphetamine deal with a co-defendant that was instigated by an informant who posed as a customer for the cell phone’s number was lawful.
10.) Arizona, Federal District Court (in the 9th Circuit), U.S. v. Santillan (2008). Upheld warrantless search of seized cell phone’s call logs just minutes after defendant’s arrest for drug trafficking to preserve incriminating evidence.
11.) Minnesota, Federal District Court (in the 8th Circuit), U.S. v. Deans (2008). After arresting one of two defendants for drug distribution and conspiracy, officers’ search of the “electronic memory” of arrestee’s two cell phones for information linking both defendants and their criminal acts was lawful.
Many of these cases involved drug arrests, for which a cell phone is likely to contain evidence of the crime. Even in these jurisdictions, different facts might yield a different decision.
A vocal minority of courts finding warrantless searches of cell phones incident to arrest unlawful has begun to weigh in. They include:
1.) 1st Circuit (encompasses Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island), U.S. v. Wurie (2013). Held that cell phone search for data is not constitutional when a person is arrested unless police get a warrant. Wurie was stopped on suspicion of a drug sale and arrested after crack cocaine was found on his person. Search of his cell phone for evidence of his drug trafficking was conducted at the police station where the phone was first seized.
2.) Smallwood v. State, Florida Supreme Court (2013). Officers were required to obtain a search warrant to view information contained within a cell phone found in the possession of suspect arrested for robbery.
3.) Ohio v. Smith, Ohio Supreme Court (2009). Smith was arrested on drug-related charges after responding to a call to his cell phone that had been placed by a crack cocaine user acting as a police informant. Post-arrest search of photos on defendant’s phone conducted after the phone was securely in police custody was not lawful search incident to arrest when weighed against defendant’s expectation of privacy unless necessary for officer safety or to preserve evidence.
Regardless of what jurisdiction you are in, consult with your local prosecutor regarding what circumstances would justify searching an arrestee’s cell phone incident to arrest – and the scope of such a search.