Let’s just say that your are leaving the parking lot of your favorite convenience store. Slurppy in one hand, cell phone in the other. An unmarked car stands by and hidden from view an officer watches your moves. You get into your car and back out. The unmarked runs interference and a couple of squad cars appear.
"Do you know why I stopped you," the officer asks.
"You’ve got a broken tail light. Please step out of the car."
You do and the officer asks if you have anything in the car that might be a "problem." You read that as drugs and remember that there is a little bit of pot hidden in a glove box. Better to take the hit then extend the contact you reason, so you admit to the pot and the cop retrieves the marijuana and your cell phone. He taps the text message icon and sees "1lb 4 1000" flash across the screen. Later the cops find that there is a pound of marijuana hidden in the spare tire in your trunk. Can the text message be used as evidence at trial? The officer says the text translates to "one pound for $1000."
The California Supreme Court says it can in a case (People v. Diaz) decided in January. The text on the phone read "6 4 80" referring to six ecstasy pills for $80. Ohio has come to a different conclusion in Ohio v. Smith, decided in 2009. There the State’s highest Court held that unless the officer’s safety is at stake or there is an emergency, the Fourth Amendment prohibits a warrantless search of a cell phone seized during a lawful arrest.
The general rule is that officers may search a person incident to arrest. Assuming they get the cell phone lawfully, they may be required to wait for a warrant (Ohio) or may be able to search immediately (California). The matter is likely headed to the Supreme Court for consideration.
Two things seem clear to me: first, the search of a cell phone has nothing to do with the original exception to the warrant requirement for the search incident to arrest. Officer safety is not the issue when the police are going through your phone. Second, there is so much data on our "smart" phones that a search will really get to potential "private" information.
What would our Idaho Supreme Court rule? Hard to tell but increasingly it seems that they are writing decisions that more strictly follow the constitutional requirements for search and seizure.
And if you are a lawyer – think about all the stuff we have on our phones that comes from clients. Email, photos, text messages and documents relating to our cases are all there for the taking. Time to get careful with the way we store information.
Have a phone story? Send me your comment.