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Posted by attorney Rosanne Faul

Advancements in technology raise many issues that you and your criminal defense attorney must face as the 4th Amendment to the United States Constitution, along with the California Constitution, addresses issues of privacy concerning the information contained on cell phones. Recently, the U.S. Court of Appeals in United States v. Flores-Lopez(7th Cir. 2012) 670 F.3d 803, decided that incident to a lawful arrest, a cell phone could be searched to obtain the phone number for the particular device. ( United States v. Flores-Lopez) Law enforcement then has the opportunity to subpoena records from the phone company connected with that cell phone.

The case Flores-Lopez was based on a drug bust that took place when a police informant ordered a pound of methamphetamine from one drug dealer who bought drugs from another dealer. An arrest was made, the truck was searched incident to the arrest and a cell phone was found. The police then searched the cell phone for the phone number for that device and subsequently subpoenaed three months of the cell phone’s call history from the telephone company. The history included conversations between the drug dealers, which were used against them in court.

The interesting aspect of the Court’s decision is the technological analysis of a cell phone’s capabilities. The Court discusses how a phone is like a computer and with certain applications, such as iCam, the phone may even look into a person’s house through the home computer. ( iCam) This would become a search of a house, which is held to higher standard than a person’s car and the Court did not decide this issue.

The other discussion centered around the legal analysis of how searches incident to a lawful arrest are justified for two reasons: 1) to disarm a person; or 2) look for evidence of the crime that may be readily destroyed if not found immediately. Without a reasonable justification for a search, the police must obtain a warrant. The Court discussed the stun gun that is disguised as a cell phone, but rejected this argument, because once police have possession of the phone they do not need to search it to discover that it is not a weapon.

However, destruction of a cell phone, either by “ local wiping" (whereby a button is pushed and the phone is wiped clean of all contents and an emergency alert goes to a previously specified person) or “ remote wiping" (allows another person to remotely clear the contents of a cell phone) concerned the Court. Ultimately the Flores-Lopez Court allowed the invasion of privacy of a warrantless search of a cell phone for the number only. Please be aware that other information contained in a cell phone, which essentially could be your entire computer system, were not decided by this Court.

These other issues, at some point in the near future, will be decided as more and more cases involving drugs, domestic violence, embezzlement, to name a few, have issues of search and seizure related to cell phone information. In order to defend against these invasions of privacy, a criminal defense attorney needs to investigate whether a warrant was issued, the information contained in the warrant and if a warrant did not exist at the time of the search, the possibility that the search was illegal.

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