Illegal search?

[Scruit]

From another forum, where a person was just arrested for drug (personal use quantity) and held for a few hours;

So the cops confiscate his cell phone. He was in jail for one night and during that night he watched the cops go through his cell phone and write down every name and number in his contacts.

I assume that his cellphone is not subject to search without a warrant, right? And any leads then get from those numbers is Fruit of the poisonous tree, yeah?

[cmras24]

No thats not true all items can be searched if an arrest is made.

[Scruit]

What is the legal mechanism that allows the search of the DATA on his phone?

I realise they can search hom for drgus etc, but what gives them the authority to search in a location where drugs cannot exist? What is the purpose of recording the contacts?

[Scruit]

Here's what I posted in response...

They may have been looking for correlation with known drug dealer phone numbers, or maybe even for text messages/pages indicating that he may be dealing. Either way, they should need a court order (just like if they searched his house, or safety deposit box)

His car is fair game to a certain extent because they can do an inventory etc, but "they can only look for what they're looking for" ie if they have a warrant to look for a certain person in his house then they cannot look in drawers or other spaces to small to hold a human being.

Similarly, the crime they are investigating is Posession/CDS (etc) and there are certainly no DRUGS hidden in the contacts page of his phone!

If I am wrong then explain why. "They CAN search" isn't enough... ;)

[cmras24]

All items and property are allowed to be searched in a legal arrest. The suspect was arrested for possession of marijuana, a crime. Everything on his person is subject to a search legally.

[Scruit]

All items and property are allowed to be searched in a legal arrest. The suspect was arrested for possession of marijuana, a crime. Everything on his person is subject to a search legally.

But is the search not limited to finding evidence of the crime that he is being investigated for? Or do they have carte blanche to check his property for any other crimes he may have been comitting?

[1911]

The Supreme Court has ruled that a person andthe property on their person can be searched incident to arrest. If the arresting officer has the car towed when they are arrested he can search the car, trunk and all to "inventory the contents" prior to it being towed and impounded. Any contraband or evidence found as a result is admissable.

Tom

[cmras24]

If the suspect is arrested for marijuana poss, the officer is going to search the suspect for more drugs. The officer is also going to seach for items that are located on the suspect that can hurt the officer. The officer is also going to search the suspect and remove all items from the suspects person so he can be transported to jail. He is not being charged with possession of a cell phone. There is no criminal charge for possessing the cell phone. So fruits of the poisionous tree does not have any bearing on the poss of maijuana charge. Therefore the officer has legal custody of the cell phone and can answer it if it rings, and record phone numbers if they want too.

[cmras24]

This is also known as Search Incident to Arrest. Constitutional Law.

[Group9]

From another forum, where a person was just arrested for drug (personal use quantity) and held for a few hours;



I assume that his cellphone is not subject to search without a warrant, right? And any leads then get from those numbers is Fruit of the poisonous tree, yeah?

That would be a permissable search incident to arrest in every jurisdiction I have worked in. Even if it had not been, it would not necessarily be "Fruit of the Poisonous Tree". There has been some discussion on RP previously, which is too long for me to type out again, on this subject.

[chrispix]

Would a suitable solution be 'lock your phone' with a code in a situation like this?

Chris.

[K9Cop]

Whenever I hear or see "personal use quantity" mentioned it makes me wonder - seems all the dopers I've encountered have a different amount they consider personal use anywhere from 3 grams to a pound or more.

As for retrieving cell phone numbers - I've done that several times. I've also written down bank account numbers (checking/savings/ATM cards etc). Depending on the quantity seized - the tax man requests that we obtain as much info as possible concerning the assets the suspect possesses on his person as well as elsewhere, the items (jewelry, money, vehicle) that he has on or about his person are seized and the suspect gets a copy of the inventory of items seized sheet. The other info is written down on the unauthorized substance tax form that we hand the suspect a copy of and we also fax a copy within 24 hours to the NC Dept of Revenue.

[vadep]

I can only speak for Virginia, but it kinda depends...

If the cell phone is on, it is not a search (A search is universally defined as a prying into places where a person has a reasonable expectation of privacy). In this scenario, I would submit that there is no reasonable expectation of privacy, thus it is not a search.

Furthermore where did it take place? If it was in a jail, then again there is no reasonable expectation of privacy. It's not a search.

That being said, courts here have ruled that if the cell phone is OFF (and assuming the incident is not taking place in a correction facility) then there IS a reasonable expectation of privacy, and turning the phone on and examining the phonebook would consitute a search.

I think you'd have a hard time extending search incident to arrest to include the electronic contents of a cell phone.

[Jynkxxie]

I can only speak for Virginia, but it kinda depends...



I think you'd have a hard time extending search incident to arrest to include the electronic contents of a cell phone.

Wouldn't it be more like inventory? There I go opening my big mouth again...

[Scruit]

You can't justify the search of the data on the cellphone as;

- Investigating the crime of posession: There cannot be drugs in the data
- Incident to Arrest: The data cannot be used as a weapon
- Inventory: The data is not a physical item - an inventory is a list of physical items

the officer is going to search the suspect for more drugs.

There's no drugs in the contacts list

The officer is also going to seach for items that are located on the suspect that can hurt the officer.

The data can't hurt him.

The officer is also going to search the suspect and remove all items from the suspects person so he can be transported to jail.

I have no problem with him taking temporary posession of the phone - just with parsing out the data.

If the cell phone is on, it is not a search (A search is universally defined as a prying into places where a person has a reasonable expectation of privacy). In this scenario, I would submit that there is no reasonable expectation of privacy, thus it is not a search.

I'm going to have to take an opposing postion on this issue. My cellphone is NOT public property. Nobody every has any reason to look at the data. I send text messages to/from my wie all day and THOSE messages are private. The suggestion that because the phone is powered up that I should not expect the data to remain private is wrong, IMHO. That data is mine, just as if it was personal medical paperwork in a folder I was carrying.

If I had a laptop computer powered up in my car when I am arrested for DUI, then can the officer red through all my emails??

Just so we're clear (as in some repsonses I'm not sure it is totally clear) I don't have aproblem with them taking the cellphone itself - but reading through the contacts/text messages/recent calls etc. There is no probative value to this data in the investigation of the crime he was arrested for. No probable cause to believe that evidence exists in the data.

I again submit that this was an illegal search, and I would welcome case law or a better explanation of the precise search classification that this falls under.

K9 - The Fruits of the Poisonous Tree in this example would be... What if there was an old text message on the phone hat said; "I killed my wife and dumped the body in Lake Wobegone, 1 mile north of the boat launch." Divers find the body. Can the body be supressed? I believe so, because I believe the search of the text messages was the Poisonous Tree, and the information gleaned from it and all subsequent discoveries are the Fruit.

Now, if they suspect him of dealing and they are looking for text messages containing orders, then great - but still get a warrant. In the original case I don't think a judge would issue a warrant for the officers to gain access to data with no probative or other probable legal value - and if a judge won't give you that authority then what statutory authority could?