Law Office of Lowell Steiger

Do Police Need A Search Warrant for a Cell Phone?

Author: Lowell Steiger

Published On: June 29, 2007

Reprinted from Bytes in Brief by permission of Sensei Enterprises, Inc.,

On May 23, 2007, a U.S. District Court Judge for the Northern District of California ruled that warrantless searches of three defendants’ cellular phones violated their Fourth Amendment rights. In 2004, the three defendants, Edward Park, Brian Ly, and David Lee, were arrested during the raid of a marijuana hothouse. After they were taken to the San Francisco Police Department, the defendants’ belongings were inventoried including their cell phones. However, before the phones were placed in property bags, SFPD Inspector David Martinovich searched defendant Lee’s cell phone and instructed other inspectors to do the same with the other defendant’s phones. Martinovich admitted to perusing the defendant’s phone and writing down the contacts list before turning it over to the property clerk but claimed that the search was a permissible booking search. When the defendants filed a motion to suppress evidence found on their phones, the prosecution defended the search by likening it to the search of an arrestee’s wallet which is permissible. However, the court disagreed with the government’s analogy and found that a warrantless search of a cell phone goes far beyond the rationale for searches incident to arrest. The judge concluded that there was no basis for an immediate search of the phones such as to prevent concealment or destruction of evidence, and therefore, the police had time to obtain a proper search warrant. Although in this particular case the court ruled the searches unconstitutional, the judge noted that the Fifth Circuit handed down a contrary ruling and that neither the Ninth Circuit nor the Supreme Court had addressed the issue. The defendants’ motion may be found at this link and the government’s reply may be found here.

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