Cell Phone Searches Incident to Arrest

Charles Gillingham

As every investigator knows, a cell phone is frequently the repository for much information stored by criminal suspects.  In narcotics cases a cell phone might contain customer or distributor lists, pay/owe information and text or email messages.  It is always a good idea to search a suspect's cell phone.  The question has been, how?  The California Supreme Court just provided an answer.

FACTS

A Ventura County Deputy Sheriff was participating in a controlled buy of ecstasy.  Suspect Diaz drove the seller to the location and the transaction took place in his car.  The deputy was listening to the transaction on a wireless transmitter.  The deputy immediately made a car stop and Diaz was arrested as a coconspirator in the sale.  Narcotics were seized.  Diaz had a cell phone that was seized. 

Diaz was interviewed and denied knowledge of the drug transaction. After the interview, the deputy checked the text message folder of Diaz' phone and found text messages indicative of narcotics sales.  The deputy had to go through several screens to find the text message.  The deputy could not recall whether the phone was on or off when he decided to look through it. The deputy confronted Diaz with the text message and Diaz admitted to the narcotics sales.  The search of the cell phone was approximately 90 minutes after the arrest.

HOW LONG IS TOO LONG?

Diaz moved to suppress the evidence of the text message and his subsequent admission to narcotics sales arguing that the cell phone search was illegal.  Diaz argued that the search could not be incident to his arrest as the search was 90 minutes after his arrest and the phone was in police custody that entire time.  Diaz argued the deputy was required to obtain a search warrant to search his phone.  His motion to suppress was denied.  Diaz plead guilty.  Diaz appealed, lost and appealed again to the California Supreme Court.

SEARCH INCIDENT TO ARREST REVIEW

The Court reviewed search incident to arrest cases. As a review, the Court reminds us that searches incident to arrest of a defendant's person are different than searches incident to arrest of a person's possessions.   Searches incident to arrest of a person have a reduced expectation of privacy based on the arrest and can be conducted even after a substantial lapse of time between the arrest and the search. 

Searches incident to arrest of a defendant's possessions generally cannot be justified as incident to the arrest if that search is remote in time or place from the arrest and no exigency exists.  Things like luggage, closed containers, and other objects can be searched incident to arrest, but not after a lapse in time or in circumstances where the suspect can no longer access them.  If you, as an investigator, have allowed a substantial lapse of time to occur, or have made the closed container inaccessible to the suspect, you must obtain a search warrant to search the container. 

DIAZ PHONE

The question that remained in this case was this, is the 90 minute delay between arrest and search of the cell phone too long to be considered a search incident to arrest? 

First, the court found that the cell phone was immediately associated with Diaz so it was an object that could be searched incident to arrest just like any other item of personal property.  Second, the court found that 90 minutes was not too remote to invalidate the warrantless search of the cell phone.  Therefore the search was valid incident to Diaz' arrest. 

BE CAREFUL

While this case is of great assistance to law enforcement, the legal update page would urge caution when performing a cell phone search incident to arrest.  When in doubt---get a warrant!  You can almost never go wrong playing it safe.  The delay in the search here, that it was a cell phone that can contain substantial amounts of personal information could have caused the court to come down on the other side of this issue.  The state Supreme Court of Ohio did.  The 4th and 5th Circuit Courts of Appeal have come down similarly to this decision.  You can anticipate the 9th Circuit to address this issue in the coming months or years and a decision from the 9th Circuit that would be similar to this one is far from a foregone conclusion.

Secondarily, remember that every time you open a digital file, whether it be on a cell phone or computer or other digital media storage device, you alter the evidence.  That can lead to allegations later of destruction or alteration of the evidence.  Always use caution and prudence when handling electronic storage devices of any kind. 

Be sure to familiarize yourself with your agency guidelines on handling electronic evidence or check with your regional criminal forensic laboratory for best practices in the field. 

People v. Diaz 2011 D.J.D.A.R. 109.

Chuck Gillingham is a veteran prosecutor. He is also an instructor for the California District Attorneys' Association and for Santa Clara University School of Law. Please consult with your own legal counsel for precise guidance before applying any of the techniques or suggestions in this article.