Can a cellphone be searched without a warrant?
Friday, February 01, 2013 10:00 AM
Superior Court Judge Alison Frazier ruled Thursday that police officers are allowed to search a cell phone after an arrest, so long as they have probable cause to do so.
The decision may put Jefferson County on the front lines of a battle over a new legal precedent of a warrantless search of cell phones.
The ruling involved the case of Edward L. Humes Jr., 51, who was arrested in October 2011. Police found text messages on Humes' phone that suggested he was involved in drug deals, according to the affidavit police filed on the case.
Attorneys held a suppression hearing Wednesday in an attempt to exclude any evidence recovered from the cell phone from being entered at trial.
Madison Police Detective Lt. Jonathon Simpson, the arresting officer, testified during the hearing that several actions by Humes and circumstances at the scene led him to search the phone.
On Oct. 16, 2011, Simpson was patrolling when he said he noticed Humes urinate on the side of a building at Second and West streets. Simpson watched Humes and a woman get into a vehicle. Simpson radioed for assistance.
After stopping the car, Simpson said, the driver, Elizabeth Hicks, appeared to be under the influence of alcohol. He asked her to step out of the vehicle. When she did, Simpson said he noticed a rolled up dollar bill on the driver's seat and a "white, chalky substance" around Hicks' nose.
The other officer said Humes, who was in the passenger seat, had his body turned away as though he was trying to conceal something from officers. When officers got Humes out of the car and attempted to search him, Simpson said Humes resisted and tensed up.
"He just wasn't listening. He tried to control the situation," Simpson said.
Humes reached into his right pocket and pulled out some money that Simpson took and put in Humes' front shirt pocket. During that time, Simpson said Humes had a small baggie cupped in his hand that he then placed in his mouth. Officers took Humes to the ground and pulled a small, chewed-up, plastic bag from Humes' mouth.
"I believe Humes concealed some kind of narcotic," Simpson said.
Upon handcuffing Humes, officers searched him and located a pill bottle containing five baggies of cocaine, $3,625 in cash and a Samsung Galaxy S cell phone. Humes continued to resist law enforcement at the jail and knocked a Taser out of a jail officer's hand.
During the booking process, Humes asked Simpson what he was being charged with. After the officer told him he would be charged with possession of cocaine with intent to deliver, Humes offered up another statement.
"How can you charge me with that? I'm not a cocaine user," Simpson recalled Humes saying.
Simpson said he had received information prior to this incident that Humes was a drug dealer. That information, the five baggies of cocaine, the large amount of cash, the baggie Humes put in his mouth and the rolled-up dollar bill in the car led Simpson to believe Humes was dealing drugs.
Simpson, who has been a detective since 2011, said people often set up drug deals through cell phones and will call each other, but they also send text messages. Simpson performed a preliminary search of the phone at the jail and saw contacts with names he believed were associated with dealing drugs.
Within hours of Humes' arrest, the phone received several text messages, which Simpson responded to in an attempt to set up additional drug deals. He also searched the call history and began looking through the phone's text message history.
Simpson said he looked through the phone messages because they are becoming the main form of communication between people looking to make a drug deal.
"You don't send pigeons or letters to organize a deal. You make a phone call or you text," Simpson said.
Two of the three major cell phone providers do not keep records of text messages. Verizon, the only provider that does keep a record, deletes them after a few days.
The chance of a remote-wipe of the phone - using another computer to erase the contents of the phone - is also a possibility. Simpson said he looked through the phone to determine whether or not there were communications of drug activity because there was a chance they would lose the text messages.
During his search, Simpson found names of people he has come into contact with in the past who he knows to be drug users. Some texts contained language Simpson said would be used during a discussion about a drug deal.
There are not many cases that deal specifically with police taking information from cell phones, but similar cases have granted law enforcement permission to search cell phones.
Kirk vs. State
Both the prosecution and the defense in the Humes' case cited this case. It was an Indiana Court of Appeals decision handed down on Sept. 24, 2012.
In that case, police received a complaint in June 2010 that Gregory Kirk and his son were following a man Kirk owed money. The son was armed. Officers stopped Kirk and detected alcohol on his breath. They looked through Kirk's phone and found text messages related to drug dealing.
Police arrested Kirk on charges of conspiracy to deal cocaine, neglect of a dependent, public intoxication and possession of marijuana. A jury eventually convicted Kirk on all charges.
Police officers are allowed to search people they are arresting or their immediate surroundings without a warrant for officer safety and the preservation of evidence. But the Court of Appeals ruled officers must have probable cause before looking at the phone.
"The State did not make clear the reason for the search of Kirk's private cell phone. Kirk was not seen talking on his phone or even holding his phone prior to his arrest.
Kirk was arrested for neglect of a dependent and public intoxication; neither crime of which clearly implicated use of a cell phone," Judge James Kirsch wrote in his opinion.
Stephen Beardsley, Humes' attorney, referenced the Kirk case because of similarities to Humes' case.
Beardsley said there is "no suggestion the cell phone was being used that night," giving officers no reason to check the phone. Chief Deputy Prosecutor D.J. Mote argued that Simpson's reasons for checking the phone were sufficient under state statute. Frazier agreed.
"The Court finds that the circumstances surrounding Humes' arrest in the present case are different than the circumstances surrounding Kirk's arrest, and that the State has satisfied its burden of proving that the search in the present case was reasonable under the totality of the circumstances," Frazier wrote in her opinion.
Johnson vs. State
Alfred Johnson Jr. appealed his conviction to the Court of Appeals after his 2003 arrest. Police arrested Johnson after performing undercover cocaine buys with him.
After his arrest, officers looked through his pager, which had been used to set up the drug deals. Officers found the cell phone number of the confidential informant they had been using among the numbers in the pager.
This, the court ruled in 2005, was allowed under state law because information on the pager could be expected to help the police.
"[Confidential informant Larry] Reason had made two controlled buys of cocaine by calling a pager number Johnson gave Reason. The Detectives therefore had probable cause to believe the information in the pager would prove useful in solving the identity of the cocaine dealer," Judge Melissa May wrote in the opinion.
Brown vs. Fort Wayne
Barbara Brown owned a home that doubled as a homeless shelter in Fort Wayne. In January 2008, Brown's son was arrested on drug and gun charges. Authorities said Brown and her son talked about getting drugs and scales out of the house.
Police received a warrant to search Brown's residence. Police found evidence they said connected Brown to the drug activity and arrested her, seizing several cell phones in the process. Officers went through one of the cell phones.
"On those limited occasions when the issue has been reached, courts have consistently found warrant-less searches of cell phones to fall squarely within the search-incident-to-arrest exception," Judge Roger Cosbey wrote in the opinion. The exception states that officers may search for officer safety and the preservation of evidence.
U.S. vs. Flores-Lopez
The U.S. Court of Appeals Seventh Circuit heard the case of Abel Flores-Lopez and in February 2012 ruled in favor of police searching through cell phones after an arrest.
Police arrested Flores-Lopez after a controlled methamphetamine deal. After arresting him, police looked through his cell phone to obtain his phone number, which was later used to get a subpoena for other information.
Flores-Lopez appealed because he felt police were not permitted to search through his phone. The U.S. Court of Appeals disagreed and said a cell phone is similar to a diary or other container that would be found in someone's pocket.
"If police are entitled to open a pocket diary to copy the owner's address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are ... they should be entitled to read the address book in a cell phone," Judge Richard Posner wrote in the opinion.
There are not many cases that go against the search of cell phones after an arrest, but since no precedent has been set in the state, the Humes decision is likely to be appealed. A trial was set to begin Feb. 13, but a continuance was granted after the judge's ruling was made.