prevent its concealment or destruction....”
The court identified two risks which allowed for the warrantless search – harm to officers and destruction of evidence which are present in all custodial arrests. However, the Riley court concluded that there are no comparable risks when the search is of digital data.“ We... decline to extend [ searches incident to arrest ] to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.”
“ Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’ s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon – say, to determine whether there is a razor blade hidden between the phone and its case.”
Facts in Lara: Defendant Paolo Lara was convicted of possession with intent to distribute methamphetamine. He was sentenced to supervised probation that contained a search condition. Defendant failed to check in with his probation officer, so two probation officers did an unannounced probation check of Defendant at his home. One of the officers saw a cell phone on the table next to the couch, confirmed it to be Defendant’ s phone, and examined it.
He reviewed the most recently sent text messages on Defendant’ s phone and found three photographs of a semiautomatic handgun lying on a bed. It appeared from the text messages that Defendant was attempting to sell the gun. Defendant was placed in handcuffs and the officers searched Defendant’ s home and vehicle for the gun. They did not locate the gun, but did locate a folding knife, which violated Defendant’ s probation, so the officers arrested Defendant. Eventually, the officers located the gun at Defendant’ s mother’ s house. Defendant was convicted for possession of the firearm in federal court after his motion to suppress the gun due to an illegal search of his cell phone was denied.
Court Discussion in Lara
On appeal, the Ninth Circuit held that the search of Lara’ s cell phone data was unlawful and the exclusionary rule barred admission of the evidence that was the fruit of that unlawful search. In assessing whether the search was reasonable, the Court looked to Defendant’ s privacy interests, as well as the Government’ s interests of combating recidivism and helping probationers integrate back into the community.
With respect to Defendant’ s privacy interest, the Court noted that the cell phone search condition was not clear. Although Lara agreed to“ submit [ his ] person and property, including any residences, premises, container or vehicle under [ his ] control to search and seizure, none of these terms, particularly‘ container’ and‘ property,’ unambiguously encompassed his cell phone and the information contained therein.” The court ruled that the defendant’ s search conditions did not unambiguously include cell phone data.
Ultimately, the court concluded that,“ while Defendant had a diminished privacy interest due to his status as a probationer, that interest was nonetheless substantial enough to protect him from the search of his cell phone.”
Conclusion
“ Discretion is the better part of valor.” In light of these two cases, it appears that, absent exigent circumstances, it might be in law enforcement’ s best interest to secure a search warrant before accessing information on an arrestee’ s cell phone.
Obviously, that involves more work and delays securing information but, again, unless the officer is able to articulate an emergency need to access the information, securing a warrant eliminates the issues raised in each of these cases. ■
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SPRING 2016 | California Police Chief 9