United States v. Flores-Lopez, No. 10-3803 (7th Cir. Feb. 29, 2012) (for publication).
Judges Bauer, Posner, and Rovner.
Seventh Circuit affirms district court's finding that cell-phone call history was admissible despite the fact that this history was obtained b/c the police searched the phone, without a warrant, to obtain the phone's number.
This opinion is worth a read, especially on the heels of Jones and the GPS issue (see Jan. 25 post).
A quick summary:
* Opening a diary found on a suspect whom the police have arrested, to verify the suspect's name and address and to discover whether the diary contains information relevant to the crime for which the suspect has been arrested, is permissible. The cell-phone search is similar and "even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents."
* This search did not touch on the use of an iCam to view the home of the owner of the seized cell phone.
* Other conspirators were involved in the drug distribution and they conceivably could have learned of the arrests (they could have been monitoring the drug deal from afar) and they could have wiped the cell phone remotely before the government could obtain and execute a warrant and conduct a search pursuant to the warrant to find the cell phone’s number.
* It is conceivable that the defendant might have had time to warn co-conspirators before the cell phone was taken from him, allowing time to wipe the phone. While "conceivably” does not mean “probably,” the set off against the modest benefit to police of being able to obtain the cell phone’s phone number immediately comes at "only a modest cost in invasion of privacy."
* Armed with the phone number, the officers could obtain the call history at their leisure. And if the number was lawfully obtained, subpoenaing the call history from the phone company would also be lawful. A history thus obtained could properly be used in evidence against a defendant.
* It is "imperative" that officers have the authority to search or retrieve immediately, incident to a valid arrest, information from pagers in order to prevent destruction of evidence. Same holds here.
* The court could "certainly imagine justifications for a more extensive search." But the court leaves these questions for another day, as police here only obtained the phone’s number.
