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