United States Court of Appeals For the Seventh Circuit
Search and Seizure — cell phones
Police are not required to get a search warrant to determine the phone number of a cell phone seized in a search incident to arrest.
“[I]t was conceivable, not probable, that a confederate of the defendant would have wiped the data from the defendant’s cell phone before the government could obtain a search warrant; and it could be argued that the risk of destruction of evidence was indeed so slight as to be outweighed by the invasion of privacy from the search. But the ‘invasion,’ limited as it was to the cell phone’s number, was also slight. And in deciding whether a search is properly incident to an arrest and therefore does not require a warrant, the courts do not conduct a cost-benefit analysis, with the invasion of privacy on the cost side and the risk of destruction of evidence (or of an assault on the arresting officers) on the benefit side of allowing the immediate search. Toting up costs and benefits is not a feasible undertaking to require of police officers conducting a search incident to an arrest. Thus, even when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed, United States v. Robinson, supra, 414 U.S. at 235, provided it’s no more invasive than, say, a frisk, or the search of a conventional container, such as Robinson’s cigarette pack, in which heroin was found. If instead of a frisk it’s a strip search, the risk to the officers’ safety or to the preservation of evidence of crime must be greater to justify the search. Campbell v. Miller, 499 F.3d 711, 717 (7th Cir. 2007), citing Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir. 1983). Looking in a cell phone for just the cell phone’s phone number does not exceed what decisions like Robinson and Concepcion allow.”
Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Posner, J.