Another interesting cell phone search decision I am just getting to. (Credit to Fourth Amendment Blog for noticing this decision when it first came out).
Another court has provided some increased protections for the contents of cell phones. The case out of the Federal District Court for the Virgin Islands is United States v Garvey. 2010 U.S. Dist. LEXIS 98527.
In this case, the defendant was one of eight people charged with conspiracy to distribute almost 300 pounds of marijuana. The DEA obtained a warrant to search a co- defendant's home. The list of property to be seized included any cell phones.
When the warrant was executed, the defendant was in the carport. One officer noticed the defendant trying to hide his Blackberry. The police seized the Blackberry, reviewed the contents, and found a picture of a DEA agent's car.
The evidence obtained from the cell phone was suppressed for two reasons. First, simply because the defendant was on property where the police were executing a search, the police did not have the right to seize his property. His presence there was a coincidence, like the presence of a patron in a bar when a warrant at the location is executed. (Ybarra v. Illinois, 444 U.S. 85 (1979).)
Second, and most importantly I believe, the defendant's attempt to hide his cell phone did not provide justification for a seizure of that phone. This was not a case where the police had reason to believe that the phone was a weapon. Even if they were concerned that the phone could be a disguised weapon, that might justify a temporary seizure to ascertain the nature of the device. This would not justify a review of the contents.
The implications of a contrary decision would have been significant. If the court had held that merely attempting to hide a cell phone – when a person is not under arrest – permitted the police to search the contents, then the police could search the contents of a cell phone during a routine traffic stop if, for example, a person tries to conceal a phone.
I think this would be a different case if the police had probable cause to believe that the phone contained evidence of a crime. If that probable cause had been developed before the defendant was encountered, then a warrant could have been obtained at the same time a warrant for the co-defendant's residence was obtained. If probable cause was developed later – and the effort to conceal the phone could be relevant to that probable cause determination – then the officers likely could seize the phone temporarily while a warrant was obtained to prevent the destruction of evidence.