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Wednesday, February 29, 2012

Ind. Decisions - 7th Circuit decides one Indiana case today

In U.S. v. Flores-Lopex (SD Ind., Lawrence), a 15-page opinion, Circuit Judge Posner writes:

This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant—for a modern cell phone is a computer. * * *

At the scene of the drug sale and arrests, an officer searched each cell phone for its telephone number, which the government later used to subpoena three months of each cell phone’s call history from the telephone company. At trial the government sought to introduce the call history into evidence. The history included the defendant’s overheard phone conversation with Santana- Cabrera along with many other calls between the defendant and his coconspirators. After a brief hearing the judge overruled the defendant’s objection, which however was limited to the call history of the cell phone that he admitted was his, since he denied owning or having used the other cell phones.

The defendant argues that the search of his cell phone was unreasonable because not conducted pursuant to a warrant. The phone number itself was not incriminating evidence, but it enabled the government to obtain such evidence from the phone company, and that evidence, the defendant argues, was the fruit of an illegal search and was therefore inadmissible. * * *

[A]ssume that justification is required for police who have no warrant to look inside a cell phone even if all they’re looking for and all they find is the phone number. The government emphasizes the danger of “remote wiping.” Instant wiping, called “local wiping,” as by pressing a button on the cell phone that wipes its contents and at the same time sends an emergency alert to a person previously specified. * * *

Looking in a cell phone for just the cell phone’s phone number does not exceed what decisions like Robinson and Concepcion allow. * * *

But these [broader issues] are questions for another day, since the police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number.

Posted by Marcia Oddi on February 29, 2012 02:21 PM
Posted to Ind. (7th Cir.) Decisions