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June 29, 2007

Do Police Need A Search Warrant for a Cell Phone?


Reprinted from Bytes in Brief by permission of Sensei Enterprises, Inc., www.senseient.com

On May 23, 2007, a U.S. District Court Judge for the Northern District of
California ruled that warrantless searches of three defendants’ cellular
phones violated their Fourth Amendment rights. In 2004, the three
defendants, Edward Park, Brian Ly, and David Lee, were arrested during the
raid of a marijuana hothouse. After they were taken to the San Francisco
Police Department, the defendants’ belongings were inventoried including
their cell phones. However, before the phones were placed in property
bags, SFPD Inspector David Martinovich searched defendant Lee’s cell phone
and instructed other inspectors to do the same with the other defendant’s
phones. Martinovich admitted to perusing the defendant’s phone and writing
down the contacts list before turning it over to the property clerk but
claimed that the search was a permissible booking search. When the
defendants filed a motion to suppress evidence found on their phones, the
prosecution defended the search by likening it to the search of an
arrestee’s wallet which is permissible. However, the court disagreed with
the government’s analogy and found that a warrantless search of a cell
phone goes far beyond the rationale for searches incident to arrest. The
judge concluded that there was no basis for an immediate search of the
phones such as to prevent concealment or destruction of evidence, and
therefore, the police had time to obtain a proper search warrant. Although
in this particular case the court ruled the searches unconstitutional, the
judge noted that the Fifth Circuit handed down a contrary ruling and that
neither the Ninth Circuit nor the Supreme Court had addressed the issue.
The defendants’ motion may be found at
http://www.politechbot.com/docs/cell.phone.4a.brief.052907.pdf  and the
government’s reply may be found at

Read the Full 9th Circuit Court of Appeals Opinion


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