07-01: Cell Phones Searches Incident to Lawful Arrest
Case: U.S. v. Finely, 2007 WL 196531 (C.A. 5 Texas) NOT A FLORIDA CASE!

Date: February 19, 2007 (Opinion filed January 26, 2007)

FACTS: Following his arrest for sale of methamphetamines, Jacob Finley’s cell phone was taken by law enforcement officers who searched through the phone’s call records and text messages. Several of the messages related to narcotics transactions. The trial court denied Finley’s motion to suppress and the appeal resulted.

RULING: The 5th Circuit Court of Appeals in Texas affirmed the denial of the suppression motion and said the warrantless review of the phone’s records and messages did not violate the Fourth Amendment. The court ruled that a cell phone is a “container” that may be searched incident to a lawful arrest. The basis for the ruling is the U.S. Supreme Court opinion in New York v. Belton, 453 U.S. 454, 460-61 (1981), which held that police may search any container, open or closed, located within an arrestee’s reach. (Belton held that a container “denotes any object capable of holding another object.”)

NOTES: This case has understandably generated a great deal of interest among law enforcement officers. Although helpful, the case is binding only in the federal fifth circuit, which does not include Florida . It won’t be the law in Florida until the U.S. Supreme Court; the federal Eleventh Circuit; or Florida appellate courts adopt its rationale. Until then, law enforcement officers in Florida should proceed with great caution in using Finley as the basis for warrantless searches of cell phones taken from arrested subjects. Historically, Florida courts have been inclined to extend great privacy protection to the use of phones.

Steve Hurm
Regional Legal Advisor
Florida Department of Law Enforcement
Tallahassee and Pensacola Regional Operations Centers

FDLE Agents: Until a case with binding authority in Florida is decided on this issue, FDLE agents should continue to obtain search warrants for securing information from cell phones seized from arrested subject.

If you have questions regarding this case, contact your regional legal advisor.

For Further Information Contact:
Steve Brady
Regional Legal Advisor
Florida Department of Law Enforcement
Orlando Regional Operations Center