A federal case from New Mexico underscores something I have noted before (for example, here and here – don’t abandon a cell phone if you expect the information contained on the phone to remain confidential.
The case is U.S. v. Washington.
The defendant was arrested for suspicion of drug smuggling after a Border Patrol agent observed suspicious behavior by a couple of vehicles. While checking the registration, the vehicles varied their speeds in an apparent effort to get the agent to pass them. The Agent eventually stopped one of the vehicles. Based on confusing answers from the driver, the Agent suspected that the driver was a smuggler. A drug dog alerted on the trunk and a subsequent search of the vehicle revealed a duffle bag in the trunk containing three bundles of marijuana wrapped in green plastic and weighing approximately 42 pounds. The driver initially denied knowing anything about the marijuana in the trunk of her car, but during the traffic stop sent a text message to someone reading, "goin to jail. I got this." The driver later admitted that she knew about the marijuana, but that it was not hers and that she was transporting it from Arizona to Illinois for her boyfriend, the defendant.
Border Patrol agents located the other vehicle in in a motel parking in Truth or Consequences, New Mexico.
The agents knocked on the door of the Defendant's room, announcing "United States Border Patrol." The window to the motel room was open about four inches, and the agents could hear movement inside of the room. After approximately five minutes, one of the occupants opened the door. The defendant was detained and an Agent performed a brief search of the motel room for any weapons or other contraband in plain view. An hour later, the defendant was arrested and placed in a holding cell. The room was searched and some marijuana residue was found around the toilet.
A second search of the motel room was also conducted later that afternoon in an effort to find the phone to which the driver of the first vehicle had texted "goin to jail. I got this." Based on information from the cell phone company, the phone was located underneath the countertop, in a crevice near the wall. The phone was found at about 1:30 p.m. in the afternoon; checkout time for the motel was 11:00 a.m. The phone’s screen had been smashed.
The government – perhaps acknowledging the questionable legality of the initial search of the motel room -- stated that it did not intend to introduce or any evidence seized from his car or the motel room, except for the cell phone.
In regards to the cell phone, the government could not claim that an immediate search was justified because of the threat that the incriminating message could be deleted. This is because the agents were already in possession of the sending phone, and thus had evidence of the text message and the phone number to which the text was sent.
However, the government could use the cell phone as evidence because “the second search of the motel room was not an invasion of Defendant's right to privacy because it was not conducted until 1:00 p.m., after his rental period for the motel room had expired.” More importantly, the defendant had clearly abandoned the phone by leaving it under the sink and smashing the screen.
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