Warrant Not Necessary During Arrest To Get Cell Phone Number

Law enforcement officers do not need a warrant to search a suspect’s cell phone to obtain the phone’s number, the Seventh Circuit ruled.

The court said obtaining the phone number was “minimally invasive of privacy” and justified because it was possible that the number could have been erased remotely before the arresting officers obtained a warrant.

The case arose when police arrested the defendant during an illegal drug buy.  The defendant was carrying a cell phone when he was arrested and admitted the phone was his.  The police then searched the phone to obtain its number, which was subsequently used to subpoena phone company records that were introduced at trial.  Defendant objected to the records being admitted at trial arguing that the initial search of his cell phone was not conducted pursuant to a warrant.  The trial court rejected his argument and he was convicted.

Judge Posner observed that a cell phone is a computer, which is “quite likely to contain, or provide ready access to, a vast body of personal data” much like a personal diary.  However, if a suspect’s diary is opened “to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested,” the opening of the diary is permissible.  “[W]hat happened in this case was similar but even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents,”  Judge Posner wrote.  “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.”

The court found that it was reasonable not to require a warrant because it was “conceivable” that the suspect or one of his friends could have remotely wiped the phone number from the phone.  By immediately searching the phone for its number, this possibility was eliminated.

The court noted that its decision was limited to whether a warrant was needed when only the cell phone’s number was obtained, but the court did observe that it “can certainly imagine justifications for a more extensive search. . . . But these are questions for another day, since the police did not search the contents of the defendant’s cell phone, but were content to obtain the cell phone’s phone number.”

United States of America v. Abel Flores-Lopez, Seventh Cir. No. 10-3803, issued February 29, 2012.