Search of Cell-phone Incident to Arrest

BLUF: Don't carry your cell-phone with you when you get arrested if you know or think its got evidence of a crime on it.

United States v. Murphy, 2009 U.S. App. LEXIS 677 (4th Cir. 2009).

Murphy
first argues that the district court erred in refusing to suppress
evidence of his cell phone and its contents. Specifically, Murphy
contends that the district court erred in concluding that the cell
phone was seized during a search incident to arrest because there was
no evidence presented to indicate that the cell phone was located on
his person at the time of his arrest. He further argues that the
officers were not authorized to examine the contents of the phone
without first obtaining a warrant.

Citing the
"manifest need . . . to preserve evidence," this Court has held on at
least two prior occasions, albeit in unpublished opinions, that
officers may retrieve text messages and other information from cell
phones and pagers seized incident to an arrest. See United States v. Young,
278 Fed. Appx. 242, 245-46 (4th Cir. May 15, 2008) (per curiam)
(holding that officers may retrieve text messages from cell phone
during search incident to arrest), cert. denied, 129 S. Ct. 514 (2008);
United States v. Hunter, No.
96-4259, 1998 WL 887289, at *3 (4th Cir. Oct. 29, 1998) (holding that
officers may retrieve telephone numbers from pager during search
incident to arrest).

Similarly, the Fifth Circuit and Seventh
Circuit have held that the need for the preservation of evidence
justifies the retrieval of call records and text messages from a cell
phone or pager without a warrant during a search incident to arrest. See United States v. Finley, 477 F.3d 250, 260 (5th Cir.), cert. denied, 127 S. Ct. 2065, 167 L. Ed. 2d 790 (2007); see also United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996).

The
appellant had tried to argue that police could not search without a
warrant because there was no evidence of a small storage capacity and
presumably quick loss of evidence. The appellate court declined to get
into a discussion about storage capacity. The idea that the search was
not contemporaneous was quickly disposed of because the search occurred
in the appellant's presence at the time of his arrest and it seems he
assisted the officers in doing the search.

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