The Sisyphus Comments

Cell Phone Searches Incident to Arrest

Special thanks to Lt. Scott Schwarzer for forwarding the following memorandum from the Irving, TX Police Department that contains an overview of a case that was heard in the Fifth Circuit. I am attaching the a copy of the finding to this entry. Please be sure that you discuss this matter with your prosecutor before taking enforcement action based on this analysis. I removed the last two paragraphs of this document since conclusions were made that may not be appropriate for officers from other Circuits.

In an opinion issued by the United States Court of Appeals – Fifth Circuit on January 26, 2007, the Court clearly answered an important question about the legality of searching the contents (text messages and call records) of cell phones taken from a person you have arrested.

In United States v. Finley, Midland Police Officers and DEA agents arrested Finley in a motor vehicle shortly after he and his partner delivered methamphetamine to a police informant. When they arrested him, they seized a cell phone from his pocket, then delivered him to an address at which other officers were serving a search warrant. They questioned him about the delivery and other drug transactions, and believed his answers to be untruthful. During the questioning, a DEA agent began searching the phone’s call records and text messages, a number of which appeared to be related to drug trafficking, and confronted Finley with the incriminating messages.

Evidence of the text contents was used against the Defendant at trial after the Court denied Defendant’s Motion to Suppress the evidence. Defendant’s Suppression Motion was based on the argument that the search of the cell phone was unlawful because it had occurred without a search warrant. Ultimately, the Defendant was convicted in US District Court and appealed the conviction to the Fifth Circuit Court of Appeals.

The Court of Appeals found that the search was lawful, holding that:

“in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.”

The Court went further to explain that:

“police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial.”

In a footnote, the Court addressed the issue of searching the phone after he had already been taken into custody and transported to another place:

“The fact that the search took place after the police transported Finley to Brown’s residence does not alter our conclusion. Searches and seizures 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. In general, as long as the administrative processes incident to the arrest and custody have not been completed, a search of effects seized from the defendant’s person is still incident to the defendant’s arrest. Although the police had moved Finley, the search was still substantially contemporaneous with his arrest and was therefore permissible.”

United States v. Jacob Pierce Finley