Under arrest? Then consider your call logs and phone contacts fair game for police search.
In United States v. Martin, 2012 U.S. Dist. LEXIS 183511 (E.D. Mich. 2012), in denying a motion to suppress evidence, the court held that officers were authorized to search defendant’s phone records during arrest.
In 2006, a series of drug related investigations culminated in the arrest of the defendant for conspiracy to distribute heroin. During the arrest, officers seized the defendant’s phone.
The defendant contended that the arresting officers had no right to either answer any of his incoming calls or search his contact list during the arrest.
The defendant argued that he had a privacy interest in his cell phone similar to that found in computers and emails.
While the court acknowledged the technological similarities between cell phones and computers, the court rejected the notion that the similarity translated to a constitutional bar on phone searches during arrest.
Following the persuasive precedent of other circuits, the court ruled that officers could search defendant’s phone “because there was a risk that if the phone was not immediately searched pursuant to the arrest, the information stored in the contact list or call logs of the phone would be permanently lost.”
In refusing to extend the expectations of privacy usually found in computers and emails to cell phones, the court focused on the absence of contention that the officers searched through emails, messages, saved websites, or documents on the defendant’s phone.
In this age and time, this superficial demarcation is problematic. The current homogeneity of phones, tablets and computers makes the court’s rationale behind the different privacy interest seem like legal conjecture at best.
By focusing on the nature of the search, the court’s decision indirectly implies that call records (from Skype, etc.) and contact data stored on computers, tablets, etc., are subject to warrantless searches upon arrest.
In light of the insurmountable technological advances made in the last decade, courts should err on the side of applying the same level of privacy expectation to personal telecommunication devices.