Warrantless Cell Phone Searches - A Look at the Case Law

When a person is arrested with a cell phone, law enforcement officers will likely want to search the phone's contents. Today's smart phones are a treasure trove of contacts, calendars, voice and text messages, e-mail, videos, photographs, internet use records, GPS and cell phone tower location tracking data, and information captured by all kind of additional applications, which may include sensitive personal data, like banking and medical information. The exception to the warrant requirement for a search incident to arrest was intended to allow law enforcement officers to prevent the loss or destruction of evidence and to seize weapons or materials that could be used to escape custody. Courts differ on how it applies to a cell phone.

Recently, in United States v. DiMarco, the Southern District of New York suppressed photographs found on the defendant's cell phone. 2013 U.S. Dist. LEXIS 16279 (S.D.N.Y. February 5, 2013). When DiMarco was arrested in possession of a firearm, ammunition, and a silencer, his cell phone was seized. A Special Agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") inspected his phone several hours later at the police station. She used her own mobile phone to take photographs of the pictures on DiMarco's phone. Later, the Government attempted to use the ATF agent's photographs as evidence. The Court suppressed the results of the ATF agent's search after it determined the search was not performed incident to the arrest because of the delay between the arrest and the search, and because the agent's motivation for searching the phone was to look for evidence against DiMarco, rather than to stop evidence from being destroyed or to eliminate a potential physical threat to the officers.

Other courts have allowed cell phone searches incident to arrest, sometimes for different reasons. In United States v. Finley, the Fifth Circuit allowed the warrantless search of a cell phone where law enforcement officers seized the phone when they arrested its owner at a traffic stop and searched the phone's contents at the home of a co-defendant, stating that the search was still incident to arrest because "the administrative processes incident to the arrest and custody [had] not been completed." 477 F.3d 250, 259 (5th Cir. 2007). The Tenth Circuit came to a similar conclusion when it allowed a warrantless search of an arrestee's cell phone in Silvan W. v. Briggs, holding that "[b]ecause . . . warrantless arrests...