Tuesday, February 19, 2013

Court disallows cell phone search that occurred six hours after arrest

Timing they say is everything, even when it comes to warrantless searches.

A federal district court echoed similar sentiments when it held that a warrantless search of a defendant’s cell phone six hours after arrest was unconstitutional. 

In U.S. v. Dimarco, U.S. Dist. LEXIS 16279 (S.D.N.Y. 2013), the court granted the defendant’s motion to suppress evidence obtained from the warrantless search of his cell phone because of the timing of the search and the insufficient justifications offered by the officer who conducted the search. 

The defendant, a felon, was arrested by the NYPD during an illegal gun sale. During the arrest, the defendant’s cell phone, a defaced automatic firearm and a silencer were recovered. 

More than six hours after the defendant’s arrest, a special agent from the Bureau of Alcohol, Tobacco, Firearms and Explosives examined the defendant’s cell phone. She scrolled through the pictures, text messages, and phone numbers stored on the phone. 

The agent stated that her purpose was to see if there was any evidence on the phone linking the firearm to the defendant. The agent also added that she searched through the phone without a warrant in an attempt to preserve the evidence because she was unsure of the arresting officer's evidence preservation methods. 

The warrantless search yielded about four pictures depicting a firearm that was the same color and same shape as the one recovered from the defendant during the arrest.  The agent took pictures of the digital images she came across.

At trial, the government opposed the defendant’s motion, arguing that the agent’s search of the phone was acceptable because it fell within the “search incident to arrest exception” to the Fourth Amendment’s warrant requirement. 

The court rejected this argument and held that the defendant had a cognizable privacy interest in his cell phone due to the “unique and significant information-storing capabilities of the modern cell phone.” 
Given the timing of the search and the justifications offered by the agent, the court further held that the search was unreasonable and did not properly fall within the search incident to arrest exception. 

The court focused on the fact that the search occurred more than six hours after the defendant’s arrest and thus was not contemporaneous on the defendant’s arrest. The court also noted that there was not any exigent circumstance that warranted the delay.

Also, the court highlighted that the reasons stated by the agent for conducting the search were not in line with the justifications underlying the search incident to arrest exception. 

The government was neither able to prove that the cell phone presented a threat to the officers nor that the defendant would have been able to destroy the evidence on his cell phone once it was placed under police authority. 

To its likely detriment, the government failed to make a case for the possibility of automatic deletion or remote wipe (see a discussion about this issue in the comments on this earlier post). Making these arguments to the court would have bolstered its case. On the other hand, given that the search occurred more than six hours after the arrest, there was ample time to procure a warrant, which most likely would have been granted. 

But as courts dabble deeper in Fourth Amendment issues as it relates to cell phone searches, it would be interesting to see the creative techy arguments attorneys come up with. 


  1. Remote wipe is only a prima facie concern, because the issue can be completely avoided if officers are careful. As noted in the previous post, someone with training can take the SIM card out or use a mechanism that will block cell signal until you can image the phone WITH a warrant. If it's a kidnapping or an exigent circumstance, a rummaging may be justified. However, in this case as well as most, there was no hurry once the item is seized and cut off from a cell tower.