Seventh Circuit Rules Police May Use Cell Phones Without Warrant to Determine Numbers – U.S. v. Flores-Lopez

March 12, 2012 by David S. Seltzer

As a cyber crime criminal defense attorney, I occasionally write here about whether police need a warrant to search a suspect’s cell phone. As a rule, police may search physical papers they happen to find in the defendant’s possession without a warrant when the search is “incident to a lawful arrest.” However, that rule was made before the rapid advancements in mobile technology that enabled many people to carry around miniature computers as phones. As a result, an arrestee may now be caught with a mobile phone that contains the equivalent of thousands of pages of data, making it unclear whether the search is incident to the arrest or indeed even necessary. In U.S. v. Flores-Lopez, the Seventh U.S. Circuit Court of Appeals skirted the issue, finding that police did not search the phone belonging to Abel Flores-Lopez when they used it long enough to determine his phone number.

Flores-Lopez had arranged to sell methamphetamine to a reseller, Alberto Santana-Cabrera, who in turn had planned to sell it to a customer secretly acting as a police informant. That customer was wearing a wire when he met with Santana-Cabrera, so the police got to overhear a phone conversation the two dealers had in which they agreed to make the sale at a garage. Authorities were waiting at the garage and arrested Flores-Lopez outside, after which they seized his cell phone. At the scene, they searched his phone for its telephone number, which they used to subpoena three months of his call history. The police did not obtain a warrant before looking through the phone for this information. That evidence was used at trial, where he was eventually convicted of drug crimes the majority did not specify and sentenced to 10 years in prison. Flores-Lopez appealed, arguing that the evidence was tainted by an unlawful, warrantless search.

The Seventh Circuit ultimately disagreed, finding no warrant was necessary because the officers did not truly search the phone. In an opinion laden with hypotheticals and metaphors, it suggested that cell phones and computers are not “containers” as the Supreme Court has understood them, in part because the potential for invasion of privacy is greater. Warrantless searches may still be legal when justified by the need to disarm or recover evidence before it can be destroyed, the court said, though neither was a serious issue in this case. However, it did find that the invasion of privacy from going into the phone only long enough to locate the number was so minimal as to not infringe the Fourth Amendment. And co-conspirators could theoretically have wiped the phone remotely, said the Seventh, and powering off the phone may not solve that problem. While this danger is remote, it balances with the minimal invasion of privacy from retrieving only the phone number, the court said. Thus, it upheld the inclusion of the call record evidence.

Challenging illegal searches is a common part of my job as a drug crimes defense lawyer, because drug crimes are often uncovered during searches. That’s in part because mere possession of drugs rises to the level of a crime in the United States, regardless of the defendant’s actions or intoxication, but also because police officers sometimes bend the rules in order to get an arrest. When they do, all of the resulting evidence is tainted by the illegal search and should be thrown out, as Flores-Lopez argued in this case. And if the evidence is on a phone or computer, as is more and more likely these days, it may be genuinely unclear whether the search was justified. An experienced cyber crime defense attorney can help you understand what’s legal and what’s vulnerable to a challenge.

If you’re charged with a crime having to do with cell phones, computers, the Internet or other technology, you need an experienced cyber crime attorney by your side. At Seltzer Law, P.A., lead attorney David Seltzer has extensive experience, including time as a cyber crime prosecutor for the Miami-Dade State’s Attorney’s office. To learn more or set up a free consultation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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