Search Incident to Arrest – Cell Phones

In United States v. Finley, 477 F.3d 250 (5th Cir. 2007), the Fifth Circuit Court of Appeals ruled that law enforcement officers may search cell phones incident to a lawful arrest.

Citing both United States v. Robinson, 414 U.S. 218 (1973) and New York v. Belton, 453 U.S. 454 (1981), the Court stated “Police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial.” Finley at 259-260.

Finley was charged with and ultimately convicted of aiding and abetting possession with intent to distribute a controlled substance (methamphetamine). After his arrest and during the search of his cell phone, law enforcement officers found incriminating text messages relating to drug trafficking which were used against him at his trial.

Search Incident to Arrest – Arizona v. Gant

After many years of expanding the scope of the search incident to arrest doctrine, the United States Supreme Court took a step back in Arizona v. Gant, 556 U.S. 332 (2009).

Acting on an anonymous tip that a residence in Tucson was being used to sell drugs, two Tucson police officers knocked on the front door of the residence and asked to speak to the owner. Rodney J. Gant answered the door and, after identifying himself, stated that he expected the owner to return later. The officers left the residence and conducted a records check, which revealed that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license. Later that evening, the officers returned to the residence and found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. The man and woman were handcuffed and secured in separate patrol cars when a vehicle pulled up to the residence. The officers recognized Gant as the driver of this vehicle. Gant got out of his vehicle and walked away from the vehicle. When he was about 10 feet from his vehicle, he was met by one of the police officers who immediately arrested and handcuffed him. Because the other arrestees were secured in the only patrol cars at the scene, one of the officers called for backup. When two more officers arrived, Gant was locked in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of the other patrol car, two officers searched his car. One officer found a gun and the other discovered a baggie containing cocaine in the pocket of a jacket on the backseat. Gant was charged with possession of a narcotic drug for sale and possession of drug paraphernalia.

Gant moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. Gant argued that New York v. Belton, 453 U.S. 454 (1981), did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. The trial court denied the motion to suppress on the grounds that the search was incident to a lawful arrest. Gant proceed to trial where he was convicted and sentenced to a three year term in prison.

In reversing Gant’s conviction, the Arizona Supreme Court concluded that the search of Gant’s car was unreasonable within the meaning of the Fourth Amendment. The court’s opinion discussed at length the United States Supreme Court decision in Belton, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle’s recent occupant. 162 P. 3d 640, 642–643 (2007) (citing 453 U. S., at 460). The Arizona Supreme Court distinguished Belton as a case concerning the permissible scope of a vehicle search incident to arrest and concluded that it did not answer “the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.” 162 P. 3d, at 643. Relying on the United States Supreme Court decision in Chimel v. California, 395 U.S. 752 (1969), the Arizona Supreme Court observed that the search incident to arrest exception to the warrant requirement is justified by interests in officer safety and evidence preservation. 162 P. 3d, at 643. When “the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer,” the court concluded, a “warrantless search of the arrestee’s car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence.” 162 P. 3d, at 644. Accordingly, the Arizona Supreme Court held that the search of Gant’s car was unreasonable.

In a five to four decision, the United States Supreme Court agreed with the rationale of the Arizona Supreme Court and held that “Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed.” Gant at ____.

In a rather odd alliance, voting for the defense’s postion were Justices Stevens, Scalia, Souter, Thomas and Ginsburg – voting for the State of Arizona’s position were Justices Roberts, Kennedy, Breyer and Alito.

Justice Scalia wrote a concurring opinion, stating that “we should simply abandon the Belton-Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto ‘reasonable’ only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred.” Gant at ____.