By JOE CELENTINO
CHICAGO (CN) - Police officers may conduct a warrantless search of a cellphone to determine its phone number when arresting a criminal suspect, the 7th Circuit ruled.
"This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant," Judge Richard Posner wrote for a three-judge panel. "Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a 'computer' or not) can be searched without a warrant-for a modern cell phone is a computer."
The decision affirmed the conviction and 10-year sentence of Indiana resident Abel Flores-Lopez for his role in an Indianapolis methamphetamine operation. A police informant gathering evidence against dealer Alberto Santana-Cabrera ordered a pound of meth, hoping to induce Santana-Cabrera's supplier to attend the sale and enable the police to "land a bigger fish."
The informant overheard a phone conversation between Santana-Cabrera and Flores-Lopez saying that Flores-Lopez would deliver the meth to a garage. Police arrested both dealers at the garage and searched Flores-Lopez's truck containing the meth. The officers recovered three cellphones from Flores-Lopez, one from him and two others from the truck.
The officers searched each cellphone for its telephone number, which was later used to subpoena three months of call history, introduced as evidence at trial.
On appeal, Flores-Lopez challenged the phone search, claiming that the incriminating phone records introduced by the government were inadmissible as the fruit of an illegal search.
Posner summarized the government's response: "Any object that can contain anything else, including data, is a container. A diary is a container - and not only of pages between which a razor blade or a sheet of LSD could be concealed, a possibility that justifies the police in turning each page. It is also a container of information, as is a cell phone or other computer. And since the container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don't suspect that the container holds a weapon or contraband, and thus without any justification specific to that container, United States v. Robinson ... a cell phone seized as an incident to an arrest can likewise be freely searched."
The court declined to create a special rule involving cellphones or other computers. "If police are entitled to open a pocket diary to copy the owner's address, they should be entitled to turn on a cell phone to learn its number," the 15-page opinion states. "If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone."
Co-conspirators could conceivably tip each other off to police involvement or wipe the cellphones remotely before execution of a search warrant, the 7th Circuit determined, finding that the need to act quickly to prevent destruction of evidence outweighs any Fourth Amendment concerns.
"Toting up costs and benefits is not a feasible undertaking to require of police officers conducting a search incident to an arrest," Posner wrote. "Thus, even when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed."
The court declined to address whether officers could access information other than the telephone number on the cellphone without a warrant. "These are questions for another day," the opinion concluded, "since the police did not search the contents of the defendant's cell phone, but were content to obtain the cell phone's phone number."
