The Seventh Circuit Court of Appeals ruled this week that police can search a suspect’s cell phone without a warrant. While the court acknowledged that the issue leads to the slippery slope of “whether and when a laptop or desktop computer, tablet, or other type of computer … can be searched without a warrant” the ruling did not define the boundaries of a reasonable cell phone search.
With the assistance of a paid informant, police set a trap to snare defendant Abel Flores-Lopez, a drug supplier, and Alberto Santana-Cabrera, a dealer.
The informant, after ordering methamphetamine from Santana-Cabrera, overheard a phone conversation between Santana-Cabrera and Flores-Lopez in which the latter said he would deliver the meth that had been ordered to a garage, where the sale would occur.
Officers arrested Santana-Cabrera in the garage and Flores-Lopez in front of it. Officers searched Flores-Lopez and his truck, and seized three cell phones, two of which he disclaimed. At the scene, an officer searched each cell phone for its telephone number, which the government later used to subpoena each phone’s call history.
At trial, the government introduced the call histories into evidence; the history included the Flores-Lopez’s overheard phone conversation with Santana-Cabrera. Both Flores-Lopez and Santana-Cabrera were subsequently convicted of drug-related offenses.
Flores-Lopez appealed, arguing that the phone history was inadmissible as the fruit of an illegal search, reports CNET. The Seventh Circuit Court of Appeals disagreed, comparing the cell phone search to a diary search.
Judge Richard Posner, writing for a three-judge panel, said, “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.”
Posner further reasoned that the on-site, warrantless search was justified in case a co-conspirator attempted to remotely “wipe” information from the phone.
Judge Posner views the issue not as whether law enforcement can search a phone without a warrant, but how much they can search the phone, according to Forbes. But Posner declined to answer the question of how far a cell phone search can go, which is disconcerting in an age of omnipresent smartphones.
We like Judge Posner, but the problem with this opinion is the slippery slope he mentions. If a suspect’s laptop computer is in his car at the time of arrest, can the police search it without a warrant? What about a tablet? Or a smartphone? Without guidance from the courts regarding where police should draw the line in a warrantless search, police officers will use this case to test the limits of the law, and violate suspects’ rights in the process.
- USA v. Abel Flores-Lopez (Seventh Circuit Court of Appeals)
- How the Supreme Court Botched U.S. v. Jones (FindLaw’s Supreme Court Blog)
- The Daily Writing Sample: Cell Phones and Diaries (The Wall Street Journal)
- Will Seventh Circuit Find Citizen Right to Record Police? (FindLaw’s Seventh Circuit Blog)
- Unlawful Stop? Indiana Drivers Must Signal When Bearing Right (FindLaw’s Seventh Circuit Blog)