Can Law Enforcement Agents Search a Cell Phone for Content After a Defendant is Arrested?

The use of cellular phones in this country is a common, if not, all too common. It is equally common that people who are arrested by law enforcement agents will have their cell phones seized and its contents read for other evidence of crime or for other participants in the crime. This type of police action provokes the question as to whether the Fourth Amendment's prohibition against unreasonable searches and seizures has been violated.

The core of the Fourth Amendment is that before a person or his/her property can be seized or searched a neutral magistrate must issue a warrant grounded upon probable cause. Over the years the so-called warrant requirement has been influenced by a number of exception. One of those exceptions is the search incidental to an arrest. The first noteworthy case involving an analysis of the incidental search exception to the Warrant Requirement is Chimel v. California. There the United States Supreme Court suppressed evidence where a defendant’s entire home was search inclusive of his garage and attic after he was arrested for a criminal offense. In that opinion, the Court concluded that the search incidental to arrest exception only allowed a search of the person and the area within his/her immediate control. This"zone of danger" concept was grounded upon the recognition that an arrestee could readily obtain a weapon or destroy evidence within close proximity to his person. Later, in a case titled United States v. Robinson, the Court expanded the Chimel concept by allowing the government to search containers even if closed, as part of a search incidental to an arrest. Still later, in New York v. Belton, the Court concluded that law enforcement agents could search the entire passenger compartment of a vehicle as incidental to arrest. The avowed purpose of this ruling was to give law enforcement agents a "bright line" to the conflicting principles of law that developed over the years with respect to incidental searches.

This line of cases was adjusted in 2009 in Arizona v. Gant. In that case, the accused was arrested for a motor vehicle violation. After the arrest, he was secured with handcuffs and placed in the back of a patrol car. Thereafter, the police search his vehicle and found a quantity of illicit drugs. In that situation, the Supreme Court concluded that since the suspect had been secured a distance from his motor vehicle, the resulting search was illegal because the contents of the vehicle were not within the arrestee’s immediate control.

In analyzing the search of a defendant’s phone, courts have looked to these underlying principles and generally endorse the government's ability to conduct searches of cell phones taken from the person of the arrestee. In United States v. Chen a Federal District Court judge in California concluded that the police were able to retrieve phone numbers from an arrestee’s pager to assist in the prosecution of the defendant under a conspiracy to distribute drugs. In that case, the court determined that the seizure of the pager was incidental to his arrest and that the government's ability to infiltrate the pager to collect the additional phone numbers was nothing more than opening an electronic container. This case has been the touchstone for many other cases that followed. It has been expanded to allow the government to seize cell phone after an arrest and collect relevant information from those phones.

In a recent article published by the National Association of Criminal Defense attorneys, it was disclosed that approximately 50 defendants have assaulted these types of warrantless searches with little success.

Notwithstanding, there are some opinions that have concluded that's efforts to collect data from a cell phone after the owner’s arrest offend the Fourth Amendment. One is from Ohio's Supreme Court and another from a District Court in California. These cases seem to distinguish the enormous amount of electronic information contained in the cell phone and the limited information produced by a search of closed containers. Other courts have concluded these types of searches are illicit because they are conducted well after the defendant is secured by the arrest and far removed from the phone.

For more information on this interesting issue, see the November 2011, issue of the Champion, a magazine published by the National Association of Criminal Defense Attorneys.