Can You Search Me Now?: Court Upholds Search Of Cell Phone Incident To A Lawful Arrest

A man is arrested. Pursuant to the Supreme Court's opinion in United States v. Robinson, 414 U.S. 218 (1973), "[a] full search of the person, his effects, and the area within his immediate reach at the time of a lawful custodial arrest may be conducted without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested." As part of a valid search incident to a lawful arrest, however, can an arresting officer search the contents of the arrestee's cell phone, and if so, how thorough can that search be? Those were the questions posed to the United States District Court for the District of Massachusetts in United States v. Wurie, 2009 WL 1176946 (D.Mass. 2009).

In Wurie, Brima Wurie was arrested on September 5, 2007, on suspicion of selling a small quantity of drugs and transported to the Area C-6 station in South Boston. Thereafter,

Approximately 5 to 10 minutes after Wurie was brought to the station, Officers Kevin Jones and Robert England, members of the C-6 Drug Control Unit, examined one of the cell phones seized from Wurie. They observed numerous calls logged on the caller ID screen from “my house.” When the phone rang, the officers flipped it open, activating the backlight. They observed a “wallpaper” photo of a young black female holding a baby. They also saw that the “my house” calls originated from “617-315-7384.” Officer Jones, using a police computer, typed the number into the website “AnyWho” (www.anywho.com). The number was listed to “Manny Cristal” at 315 Silver Street in Boston. The officers did not answer the call or access any other information stored in the phone.

Eventually, after gathering other evidence, officers were able to secure a search warrant for the apartment at 315 Silver Street and, while executing it, recovered, inter alia, 215 grams of crack cocaine, a Smith & Wesson .9 millimeter firearm loaded with five rounds of ammunition, six loose rounds of .40 caliber hollow point ammunition, four plastic bags of marijuana, drug paraphernalia, and $250 in cash. Wurie was thereafter charged with  (i) felony possession of a firearm and ammunition; (ii) distribution of cocaine base within 1000 feet of a school; and (iii) possession of crack cocaine with intent to distribute. England thereafter moved to suppress the evidence obtained based upon the information retrieved from his cell phone.

In addressing that motion, the court first noted what type of search the officers did not conduct. According to the court, the search of the cell phone was not a "second evidentiary look" at an item taken during an arrest inventory, which would have made the search unquestionably constitutional. Instead, the search of the cell phone was a search incident to a lawful arrest when Wurie arrived at the place of detention under United States v. Edwards, 415 U.S. 800, 803 (1974), or a booking search incident to a lawful arrest under United States v. Lafayette, 414 U.S. 640, 648 (1983).

The court noted, however, that "[n]either the Supreme Court nor the First Circuit has directly considered the issue of whether a search incident to arrest may include a search of a cell phone's contents, and if it does, how thorough the search might be." The court did not really need to address this latter question because it found that the search of Wurie's cell phone was "limited and reasonable." Meanwhile, in support of its conclusion that searches of cell phones incident to lawful arrests are proper as a general proposition, the court put forth an impressive string cite of opinions from across the country upholding such searches or similar searches. According to the court, "[d]ecisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager technology) trend heavily in favor of finding that the search incident to arrest or exigent circumstances exceptions apply to searches of the contents of cell phones":

See United States v. Mercado-Nava, 486 F.Supp.2d 1271, 1277 (D.Kan.2007) (the same exceptions apply to warrantless searches of cell phones under the Electronic Communications Privacy Act as any other warrantless search.); United States v. Deans, 549 F.Supp.2d 1085, 1094 (D.Minn.2008) (agreeing with the Fifth Circuit that, “if a cell phone is lawfully seized, officers may also search any data electronically stored in the device.”); United States v. Valdez, 2008 WL 360548, at *3 (E.D.Wis. Feb.8, 2008) (search of defendant's phone was contemporaneous with his arrest and the officer was reasonably concerned that if he delayed, the information on the phone would be lost); United States v. Lottie, 2008 WL 150046, at *3 (N.D.Ind. Jan.14, 2008) (warrantless search of a cell phone justified by exigent circumstances); United States v. Dennis, 2007 WL 3400500, at *7 (E.D.Ky. Nov.13, 2007) (search of a cell phone incident to valid arrest no different from the search of any other type of evidence seized incident to arrest); United States v. Parada, 289 F.Supp.2d 1291, 1304 (D.Kan.2003) (phone seized incident to valid arrest; exigent circumstances justified accessing cell phone's call records because continuing incoming calls would overwrite memory and destroy evidence); Cf. United States v. Morales-Ortiz, 376 F.Supp.2d 1131 (D.N.M.2004) (otherwise unlawful search of cell phone's memory for names and numbers was justified under the inevitable discovery doctrine); United States v. James, 2008 WL 1925032 (E.D.Mo. April 29, 2008) (“[T]he automobile exception allows the search of the cell phone just as it allows a search of other closed containers found in vehicles.”).^FN9 See also United States v. Reyes, 922 F.Supp. 818, 834 (S.D.N.Y.1996) (warrantless searches of the stored memory of two pagers justified (i) as incident to arrest and (ii) by general consent); United States v. Chan, 830 F.Supp. 531, 535-536 (N.D.Cal.1993) (warrantless search of pager memory comparable to a search of container contents; search was not so remote in time to invalidate it as a search incident to arrest); United States v. Diaz-Lizaraza, 981 F.2d 1216, 1223 (11th Cir.1993) (agents reasonably activated defendant's pager to confirm its number). Cf. United States v. Thomas, 114 F.3d 403, 404 n. 2 (3d Cir.1997) (noting in dicta that the retrieval of a phone number from a pager found on defendant was a valid search incident to arrest).

I agree with the United States District Court for the District of Massachusetts. As that court went on to note, courts have routinely allowed officers to search personal items found on arrestees such as wallets, purses, and luggage. Because there is "no principled basis for distinguishing a warrantless search of a cell phone from the search of [these] other types of personal containers found on a defendant's person," the court's conclusion was correct. The question of the proper scope of the search of a cell phone incident to a lawful arrest is a tougher question and one that I suspect will divide courts in the years to come.

-CM