ISPLA INSIGHT- LE Needs No Warrant for Phone Number
- Permission Granted to Repost:
7th U.S. Circuit Court of Appeals out of Chicagohas ruled that police may
search a cell phone for its number without obtaining a warrant. The phone
number on the cell phone, which is effectively a computer, was seized from
the defendant at the time of arrest in a narcotics bust. It was used to
subpoena the owner's call history, revealing conversations with
co-conspirators. Judge Richard Posner, writing for the three-judge panel
hearing arguments in this case on January 25 and which was decided February
29, compared a cell phone not only to a computer, but to a pocket diary. He
wrote: "If police are entitled to open a pocket diary to copy the owner's
address, they should be entitled to turn on a cellphone to learn its
number." Furthermore: "If allowed to leaf through a pocket address book, as
they are . , they should be entitled to read the address book in a
cellphone. If forbidden to peruse love letters recognized as such found
wedged between the pages of the address book, they should be forbidden to
read love letters in the files of a cellphone."
Citing cases going back to the 1981 decision in New York v. Belson and the
"Robinson Rule" it would be wise for professional investigators to take time
to read Judge Posner's 15-page decision. Many factors were considered, such
as whether inspecting a cellphone is greater than the searching of a
"container" or if such might actually be a "stun Gun."
Although the actual make and model of the cell phone was never identified
the decision noted "that an iPhone application called an iCam allows one to
access a home computer's webcam, thus allowing one to survey inside a home
while a thousand miles away. Thus at the touch of a button a cell phone
search becomes a house search, and not a search of a 'container' in any
normal sense of that word, though a house contains data."
Judge Posner's decision ends: "But these are questions for another day,
since police did not search the content's of the defendant's cell phone, but
were content to obtain the cell phone's phone number. - Affirmed"
Expect this Fourth Amendment issue to eventually be decided by the U.S.
Supreme Court. It will have ramifications as controversial as the recent GPS
tracking case of U.S. v. Jones.
The decision in USA v. Flores-Lopez is available at:
Bruce Hulme, ISPLA Director of Government Affairs
Resource to Investigative and Security Professionals, the Government, and
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