Tuesday, June 26, 2012

Law Technology News: Courts Still Divided on Cell Phone Searches

Law Technology News, June 22, 2012.

A Colorado court has continued the split among courts about the ability, under the Fourth Amendment, for police to search cell phones. The case is People v. Taylor, Colo. Court of Appeals, 5th Div. No. 09CA2681 (June 7, 2012).
In Taylor, undercover officers suspected that the defendant was dealing drugs. He was arrested. After the defendant was arrested, he was searched and his cell phone was seized. One of the arresting officers reviewed the cell phone's call log -- without a warrant -- and found incriminating evidence.
The defendant argued that the search of his cell phone without a warrant violated his Fourth Amendment rights. The police justified the search under the "search incident to arrest" exception to the warrant requirement. In brief, under this exception to the Fourth Amendment, police may search any objects in the possession or reach of an arrested person.
Whether this search includes cell phones has not been addressed by the U.S. Supreme Court. A number of courts -- including the Fourth and Fifth Circuits, have permitted these searches. Some courts -- including most notably the Ohio Supreme Court -- have suggested the cell phones are different.
The Taylor court allowed the search. Notably, the court seemed to rely upon the fact that the search was limited to the call history. Whether a different result would have been reached had officers searched emails, text messages, or photographs stored on a smartphone is an open question. Regardless, the Taylor case further illustrates why guidance from the Supreme Court on this issue is necessary.
For further background, see also LTN's March 12 analysis of a Seventh Circuit decision, U.S. v. Abel Flores-Lopez; "Courts Struggle With Police Searches of Smartphones," and this law review article, "Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices, University of Memphis Law Review, Vol. 41, p. 233 (2010).

Post Originally appeared on EDD Update.

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