Wednesday, April 15, 2009

Substantially Contemporaneous

In an earlier post, I explained that search incident to arrest – usually truncated as “search incident” – is an exception to the 4th Amendment’s requirement that law enforcement officers get a warrant before searching someone or something.

This post was prompted by a question I got recently: whether officers can rely on the search incident exception to search a cell phone AFTER the person has been arrested and taken away.

The specific issue was whether officers can check a cell phone out of the property room at the police station and go through it; the scenario assumes that the cell phone was seized in the course of an arrest that happened hours or even days earlier.

In Shipley v. California, 395 U.S. 818 (1969), the U.S. Supreme Court noted it had “consistently held that a search `can be incident to an arrest only if it is substantially contemporaneous with the arrest’”. That raises the issue of when a search incident is, and is not, “substantially contemporaneous” with the arrest.

The resolution of that issue is complicated by two subsequent Supreme Court decisions. In United States v. Edwards, 415 U.S. 800 (1974), the Court held that the search of an arrestee’s clothing at the jail was valid under the search incident exception. Edwards was arrested “[s]hortly after 11 p.m.”, taken to the jail and put in a cell. U.S. v. Edwards, supra. He was charged with trying to break into the post office; the person who tried to break in used a crowbar on a window and left paint chips on the windowsill. U.S. v. Edwards, supra. The police wanted to check Edwards’ clothes to see if there were paint chips on them, but didn’t have anything for him to wear. The next morning, they bought “trousers and a T-shirt”, had him change into those clothes and took his clothes, which were tested for paint chips. U.S. v. Edwards, supra.

Edwards moved to suppress the paint chips found on the clothes they took from him at the jail. U.S. v. Edwards, supra. The state claimed it was a valid search incident, and the Supreme Court agreed. In upholding the search, the Supreme Court quoted a lower court, which held that “`the legal arrest of a person . . . it does -- for at least a reasonable time and to a reasonable extent -- take his . . . privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.'” U.S. v. Edwards, supra (quoting U.S. v. DeLeo, 422 F.2d 487 (U.S. Court of Appeals for the First Circuit 1970)).

In 1977, the U.S. Supreme Court decided a case that may have added another layer to the search incident analysis. In U.S. v. Chadwick, 433 U.S.1 (1977), federal agents arrested Chadwick and two other people and seized a footlocker they had put into the trunk of a car. The agents took the arrestees and the footlocker to the Federal Building; they finally searched the footlocker an hour and a half after making the arrests. U.S. v. Chadwick, supra. The government claimed the search of the footlocker was valid as a search incident to arrest but the Supreme Court disagreed.

The search incident exception has two parts: officers can search the person who is being arrested; and they can search the area immediately around the person when they are arrested. The justification for both searches is to find weapons the person could use against police or evidence he/she could destroy. U.S. v. Robinson, 414 U.S. 218 (U.S. Supreme Court 1973). The Chadwick Court found that warrantless searches can’t be justified as incident to an
arrest if the `search is remote in time or place from the arrest’ . . . or no exigency exists. Once law enforcement officers have reduced . . . personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.
U.S. v. Chadwick, supra.

These cases establish the framework lower courts have applied in deciding whether a search of a cell phone was “substantially contemporaneous” with an arrest. I’ve found a few lower court cases in which this particular issue came up (though it’s come up in a lot of cases involving other types of property).

In U.S. v. Finley. 477 F.3d 250 (U.S. Court of Appeals for the Fifth Circuit 2007), police arrested Finley and his friend Brown while conducting a drug investigation. When they arrested Finley, they seized his cell phone; the officers then took the two men to Brown’s home, where other officers were executing a search warrant as part of the same investigation. While they were at Brown’s home, two officers “interviewed Finley outside the home.” U.S. v. Finley, supra. During the questioning, one of the officers searched his cell phone and found evidence the government wanted to use against Finley. U.S. v. Finley, supra.

When Finley moved to suppress the evidence found on his cell phone, the government claimed the search was valid as a search incident to arrest. Finley apparently relied on Chadwick in arguing it was not a valid search incident, but the Fifth Circuit Court of Appeals distinguished the cell phone search from the search in Chadwick. It found that Chadwick was “inapplicable” to the Finley search: “Finley's cell phone does not fit into the category of `property not immediately associated with [his] person’ because it was on his person at the time of his arrest.” U.S. v. Finley, supra.

A federal district court reached a different conclusion in U.S. v. Park, 2007 WL 1521573 (U.S. District Court for the Northern District of California 2007). In Park, officers executed a search warrant for drugs at an address in San Francisco. They arrested four men who were suspected of being involved in the drug activity being investigated; all either showed up at the premises while the warrant was being executed or, in one instance, tried to leave the premises while the search was going on. U.S. v. Park, supra. The only thing that’s clear about what happened to their cell phones is that officers searched them, at some point (maybe more than once).

When one of the defendants moved to suppress evidence found on his cell phone, the federal court considered statements from the officers involved and from a DEA agent involved in executing the search warrant and arresting the suspects. The federal judge found that the officers and the DEA agent gave conflicting statements as to when the cell phones were searched. From statements summarized in the court’s opinion, it looks like the phones were searched after the men had been booked into the jail and after their phones had been taken from them, sealed into “property envelopes” and taken wherever the jail stored items seized from arrestees. The statements of the officers tended to say that they didn’t recall exactly when they searched the cell phones. U.S. v. Park, supra.

The government seems to have relied on Finley in arguing that the search of Park’s cell phone was a valid search incident to arrest. The federal judge in the Park case did not find Findley to be applicable to the facts in the case before him:
The facts in Finley differ . . . from the facts here, since in Finley the search of defendant's cell phone at the passenger's residence was `substantially contemporaneous’ with defendant's arrest; here, the search of the cell phone was not contemporaneous with arrest. More fundamentally, however, this Court finds . . . that for purposes of Fourth Amendment analysis cellular phones should be considered `possessions within an arrestee's immediate control’ and not part of `the person. Chadwick, [supra]. This is so because modern cellular phones have the capacity for storing immense amounts of private information. Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, email, video and pictures. Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through email and text, voice and instant messages.
U.S. v. Park, supra. The Park court also noted that the searches in the Park case went
far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers . . . and the need to prevent . . . destruction of evidence. . . . Inspector Martinovich stated that he initiated the searches because `evidence of marijuana trafficking and/or cultivation might be found in each of the cellular telephones.’ . . . Officers did not search the phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence. Instead, the purpose was purely investigatory. Once the officers lawfully seized defendants' cellular phones, officers could have sought a warrant to search the contents of the cellular phones.
U.S. v. Park, supra.

Finally, while an Ohio court acknowledged the Park court’s concern about “the enormous amount of private information subject to a search of cell phones,” it found that Finley controlled the cell phone search at issue in State v. Smith, 2008 WL 2861693 (Ohio Court of Appeals 2008). Local police arrested Smith for trafficking in crack cocaine and searched his cell phone “prior to booking him into jail.” State v. Smith, supra. He later moved to suppress the evidence officers found on the cell. The Court of Appeals denied the motion. It found that while the evidence showed that the officers “obtained Smith’s cell phone immediately from his person” while making the arrest, it was unclear if they searched the phone's
call records and numbers at the scene of the arrest or later at the station when they were securing the evidence. The trial court's decision, to which we agree, implies that both times are substantially contemporaneous to the arrest. This reasoning encompasses the holdings in both Finley and Edwards regarding a search incident . . . of items found on one's person. See Finley (`as long as the administrative process incident to the arrest . . . have not been completed, a search of effects seized from the defendant's person is incident to the defendant's arrest.’). See, also, Edwards (`[S]earches . . . that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.’).”

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