Search of Contents of a Cellular Phone
My question involves criminal law for the state of: CA. My 19 year old daughter was caught shoplifting a $15 shirt from Macy's where she was employed she was not working at the time, they called the police when the police arrived they asked if her phone worked she stated it did but the battery was dead the store manager then took her phone without her permission charged it and with the police proceeded to search through her calls and text messages. She has never been in trouble before and was 100% compliant. Did they have the right to do so without her permission if she already returned the property. Doesn't the search and seizure of a cell phone require a warrant?
Re: Were My Rights Violatated
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Doesn't the search and seizure of a cell phone require a warrant?
I would say yes if it was the police that did it. Store detectives, not being the government, would not be in violation of the 4th Amendment, although there could be state specific privacy laws that come into play.
The only grounds they could remotely have possibly seized the phone over would be if they saw her texting somebody there was probable cause to believe was a confederate in the store, and giving her back the phone might have led to the evidence being eliminated. However, searching the phone numbers would have required a search warrant absent some extraordinarily exigent circumstances that one would have to spend a whole day dreaming up in connection with shoplifting.
Re: Were My Rights Violatated
a regular poster here who just happens to be a policeman in California has stated that searching a cellphone is fair game when the person is arrested. While there has been recent discussions concerning this exact point, so far I do not believe any federal court has ruled against the search of a cellphone without a warrant.
Re: Search of Contents of a Cellular Phone
But they didn't arrest her would that still apply? Doesn't the law state that if there is a "reasonable expectation of privacy" the police must obtain a search warrant? Her phone was dead the officer actually asked the store manager to get a charger so he could charge and search it. She had already returned the property.
Re: Were My Rights Violatated
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jk
a regular poster here who just happens to be a policeman in California has stated that searching a cellphone is fair game when the person is arrested. While there has been recent discussions concerning this exact point, so far I do not believe any federal court has ruled against the search of a cellphone without a warrant.
I see that the 4th Circuit (MD, VA, NC, WV, SC) decided a case in 2009 while I was...out of pocket for a while. That case supports the contention of the officer above.
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In U.S. v. Murphy, the court broadly construed the authority to search a cell phone incident to arrest, ruling that “once the cell phone was held for evidence, other officers were entitled to conduct a further review of its contents . . . without seeking a warrant.”11 In Murphy, the cell phone was searched 23 days after the arrest and after being turned over to the U.S. Drug Enforcement Administration by a state trooper
However, in Northern California (San Francisco) it would appear that the searching of a cell phone incident to arrest is not sanctioned by the Federal courts:
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For example, in U.S. v. Park, the court distinguished cell phones from pagers, reasoning that cell phones contain a greater quantity of information; for this reason, the government could not show the potential destructibility of evidence needed to justify a search of the contents incident to arrest. In addition, the court ruled that an inventory search of the data was not justified.
It also appears to not be acceptable in the Southern District of Florida:
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In U.S. v. Wall, the court also declined to adopt Finley, reasoning, “The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant.”
I guess the bottom line is, until the Supreme Court weighs in on this, it all depends upon where you are.
Re: Were My Rights Violatated
So this applies in California no matter the offense? It makes sense and is neccassary when the crime involves murder, drugs, conspiracy but petty theft?
Re: Search of Contents of a Cellular Phone
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violatated
But they didn't arrest her would that still apply? Doesn't the law state that if there is a "reasonable expectation of privacy" the police must obtain a search warrant? Her phone was dead the officer actually asked the store manager to get a charger so he could charge and search it. She had already returned the property.
what do you mean "she already returned the property". You can't unsteal something.
the "reasonable expectation of privacy" is not the issue. It is simply if a warrant is required or not.
As to exigency; if they believed a partner in crime was able to escape due to the delay required to obtain a warrant, they may be able to make such a claim. Not sure if that would be enough to justify the search but it might if they could defend the action itself as having some value. I don't see how it would but I don't always win my arguments.
so, the question is; what does she want to do about it?