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7th Circuit ponders search of cell phone

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The 7th Circuit Court of Appeals, which likened modern cell phones to computers, had to decide whether police could search a man’s phone for the phone’s number without a search warrant.

In United States of America v. Abel Flores-Lopez, No. 10-3803, police suspected Abel Flores-Lopez supplied drugs to dealer Alberto Santana-Cabrera, who then unknowingly sold them to a police informant. Police tracked down Flores-Lopez and Santana-Cabrera and arrested them. Police seized a cell phone on Flores-Lopez and two from the truck he was in. Flores-Lopez only admitted to owning the one found on him. Police searched that phone at the scene of the arrest to obtain Flores-Lopez’s phone number. That number was used to produce three months of the phone’s call history, which was introduced into evidence.

Flores-Lopez objected to the admittance, but that was overruled. He argued that the search was unreasonable because police didn’t have a warrant, so the evidence obtained from the phone company shouldn’t be admitted.

Judge Richard Posner examined the issue by comparing modern cell phones to computers and whether just looking for a phone’s number – and nothing more – is allowed without a warrant. Cell phones are containers of data, much like a diary, but also go beyond diaries because they contain far more personal and private information and data, he wrote.

“It’s not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number,” Posner wrote.

He also looked at the urgency issue – do police need to obtain the cell phone’s number right away? There is the possibility of an arrestee erasing all the data from his phone, either on scene or remotely.

In the end, the appellate court decided the invasion of privacy by looking for just a cell phone number of a phone was slight. It could be obtained by doing a quick search on the phone and without seeing other data.

 

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  1. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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