May 30, 2007 3:59 AM PDT

Police Blotter: Cops need warrant to search cell phone?

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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Police Blotter, booking, T-Mobile Sidekick, warrant, arrest

11 comments

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Darned Right! Invasion of privacy...
Without a warrant. Don't get me wrong but just because someone gets picked up doesn't mean they have to expose all of their data, contacts, call logs, calendar, etc.
With the proliferation of Smartphones you could have the equivalent of a file cabinet's worth of information on your phone. I have nothing to hide but if law enforcement wants access to all of my files they had better come with a warrant specifically itemizing said file cabinet.
Again I have nothing to hide but I trust them to safeguard that information about as much as if I just put it in the public domain.
Posted by fred dunn (793 comments )
Reply Link Flag
Question
If he had a notebook would they need a warrant? How about a wallet?
Posted by sal-magnone (162 comments )
Link Flag
What about..
Probable Cause? They just raided a house filled with illegal drugs and paraphernalia. If in the course of the raid they discover that these people are in fact selling / distributing 'pot' then checking their phones would be a very logical step. Don't get me wrong, I am all for protecting privacy, but in a case like this, I would see their phones as evidence of a crime picked up in the raid.

If you are dealing, it might be best you delete those text messages with "where da weed at?" Then again, you should get a real job like the rest of us and stop selling illegal drugs.
Posted by SeizeCTRL (1333 comments )
Link Flag
If you did nothing wrong you have nothing to hide. So what's the big deal?
I agree with you whole heartedly on this one. I have had cops tell me exactly what I have as the subject line. The big deal is that it is none of your damned business! Just because I have done nothing wrong and thus have nothing to hide doesn't mean that I am going to allow a total stranger to look through my personal belongings. I often wonder how the police officer would feel if the same question was posed to him/her or their spouse or children. Would they want some person they have never met before ( and therefore have no real reason to trust ) crawling through their file cabinet, bedroom closet or underware drawer? These persons may have more motive to search your stuff other than protecting the public, and could expose your personal effects, papers, belongings to others. In today's world of you need to protect your stuff from everyone especially your digital stuff.
Posted by Black_Cowboy_Hat (9 comments )
Link Flag
Border crossing
Border guards don't need a warrant to search a phone. Or laptop. Or even need to justify their actions. And yet they carry out many of the same functions as police.
Does this seem like a problem to anyone else?
Posted by Marcus Westrup (630 comments )
Reply Link Flag
completely different issue
At the border you are asking permission to enter and they can ask anything of you or turn you away. You aren't under arrest, you aren't required to accede to their requests/demands unless you want to cross.
Posted by TucsonAlexAZ (53 comments )
Link Flag
Amendments get stepped on more every day.
The 1st amendment guarantees us the right to free speech. Where in today's society is that even applicable? Just a few weeks ago Imus lost everything he ever worked for because he said some nasty things. The man had his career flushed down the toilet because freedom of speech doesn't exsist.
2nd amendment - well let's not even go there.
3rd amendment - I think the abuse of eminent domain falls under this one
4th amendment - cops do it all the time. They find something and THEN get a warrant to cover their hind ends.
5th amendment - the right not to incriminate yourself. I think that has been trampled on a few times in the last few years. The whole CIA agent identity leak comes to mind
6th -Speedy trial - can't think of anything at the moment ( maybe Leonard Peltier)
7th - Has anyone seen People's court? Hello!
8th - Excessive bail or fines / cruel or unusual punishment. I don't know about you but I have seen bail amounts skyrocket over the last 20 years and unusual punishment... anyone read the story about the guy banned from anything that could possibly be connected to the internet, including anything that he might have to use to earn a living? Ok, he's a pediphile but that sounds like VERY unusual punishment. Also to restrict a person's ability to be employed sounds a little cruel to me.
9th - Bill of rights not all encompassing - if it's not mentioned it is retained by the people. Yeah RIGHT! Big government has been telling us what we can and can not do since at least the mid 1800's
10th - "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people." So where does the federal governement get off telling the local school board what can and can not be allowed in the classroom and what MUST be taught? To have the Federal government telling teachers what they have to teach sounds a little tyranical to me.
The reason why the police, the legal system and the federal government gets away with it is simply because people do not know what their rights are. Secondly, the people, not being educated in their rights, demand that the government step in and tie the hands of the legistlature. Mandatory sentencing is the best example of this one. I think sentencing should be left to the judge that hears the case and knows all the details, not someone that does not know the details, circumstances or idividual being tried. (Example - In Florida if you are caught carrying a firearm without a concealed weapons permit you will be sentenced to a minimum of 3 years in prison. Sounds like a good law right? Try in this scenario. Hurricane Wilma hit West Palm Beach, power was out in some areas for over a month. The owner of small grocery store is walking from his home, the two blocks to his store with his handgun to protect his store from possible looters. This hypothetical person who has no criminal history, is a community volunteer, reads to the blind on the weekends, donated his kidney to a stranger, recieved the congressional medal of honor while in the service will be going to jail for 3 years for simply trying to protect his store from criminals. Still sound like a good idea to you? )
My advice, learn your rights, advise others of their rights once you know yours and most importantly don't let politicians take away your rights.
Posted by Black_Cowboy_Hat (9 comments )
Reply Link Flag
Ther eason we have the right to vote.
The framers of out constitution knew that the government would attempt to steal all our rights back away from us.

The right to be secure in our person and papers, and not to incriminate ourselves would both appear to limit search of closed data containers such as a cell phone, or even an old fashioned address book.

A search WITH a warrent, would likewise include computers and cellphones IF the warrent included "all papers and contacts"

Unfortunately, the RICO laws ahve turned the cops into thieves, in one experience, virginia cops stopped my son-in-law because they wanted to steal his pickup truck.

They used the pretense of "tinting too dark" which is a typical bogus excuse to stop profiled kids, then made them wait several hours while they performed a warrentless search.

WARNING: NEVER, EVER, say "yes" or "no" when the police ask a question.

the question will be "Do you have any drugs or illegal items in you car do you mind if i take a look?" no matter if you say yes or no, the crooked cop can seartch your car.

according to RICO, if he finds as much as one seed, he gets to keep your car.

if you are lucky, it will just be your car... they have the same power to steal your house.
Posted by disco-legend-zeke (448 comments )
Reply Link Flag
That is an interesting read. Whats next? Encrypted Cell Phones becoming the norm? Laptops have definitely moved in that direction. I have written about this here -- http://www.flawedspecies.com/thoughts/how-police-will-download-all-your-cell-phone-information/
Posted by runeford (1 comment )
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