Reason supenion warrantless search of cell phone
Ct , L Ed 2d , the Supreme Court took up the issue of police searches of cell phones incident to a lawful arrest. The Supreme Court held that generally a warrant is required to search digital information taken from a phone pursuant to a valid arrest. The Court did allow a warrantless search of digital information contained on a cell phone under the exigent circumstances exception to the general warrant requirement.
Exigent circumstances are a gray area in the law. Two examples are an emergency situation where quick action, a search, is necessary to prevent injury to person or property and where the police believe the relevant evidence may be destroyed without prompt action, a search, to preserve it. Because so much private and intimate information is contained on our cell phones, the Supreme Court as extended privacy protection to this area of our lives. Macabeo gave the officers permission to search his pockets, and they also searched his phone. After about ten minutes, an officer said he found no suspicious text messages but he did find pictures of underage girls, and so they arrested Mr.
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Macabeo for possession of child pornography. At trial, the judge essentially agreed that the officers had no probable cause to search Mr. Macabeo, especially since before they found the pictures, they discovered that he had been discharged from probation seven months earlier. Nevertheless, the judge ruled that since the officers had the right to arrest Mr.
The Court of Appeals reached basically the same result. Writing for a unanimous court, Justice Carol Corrigan observed that although the United States Supreme Court has consistently held that a search incident to an arrest is an exception to the warrant requirement, that same law holds that each incident must be evaluated on a case-by-case basis.
Furthermore, in most cases, police may only seize items in such cases that are germane to the arrest, such as weapons or criminal instruments.
Finally, the court recently held that individuals have a heightened privacy interest in their cell phones. Similarly, such searches do not require probable cause, so under this logic, any arrest for any crime or infraction could justify an intrusive search. The court was slightly troubled by the fact that officers had to navigate through several parts of the phone to find an incriminating text message, but the justices allowed the search.
So why the sudden reversal? Although Diaz is only about five years old, a lot has happened in those five years. As early in the process as possible and before applying for a search warrant, if practical, Service officers should consult with an Assistant United States Attorney AUSA and request their review of the affidavit to ensure it contains sufficient probable cause to obtain a warrant. In some districts, the Magistrate Judge or other issuing authority will not accept an affidavit for a search warrant without the concurrence of an AUSA.
A search warrant may be issued only on the basis of an affidavit s sworn to before a U. Magistrate Judge or other issuing authority that establishes probable cause and that describes the place to be searched or seized and the grounds for the search or seizure. The judge may use a court reporter or recording equipment to record such proceedings, which will be included as part of the affidavit for the search warrant. Under limited circumstances, judges may authorize search warrant applications and approvals over the telephone. General Rules. If reasonable cause is shown, the issuing authority may specifically authorize on the warrant that it be served at any time, day or night.
A daytime search may extend into the night, provided the Service officers executing the warrant act reasonably and do not continue the search as a form of harassment. Officers may serve warrants on any day of the week. If an officer does not execute a warrant or obtain a renewal within those 10 days, then it is void and cannot be renewed.
At that point the officer must file a new affidavit and get a new search warrant. For example, an officer may not seize a television set not listed in a warrant where its illegality only became known when the officer checked a stolen property database for the serial number from the back of the TV.
Sec. General warrants.
See FW 3 , Evidence and sections 1. Execution of Search Warrant on Premises. If the officer receives no response after such announcement or if the officer is refused admittance, the officer may break into the premises. If more than one Service officer executes the warrant, the other officer s do not need to enter the premises by the same entrance as the officer serving the warrant.
The search should be as brief as is reasonably possible. If there is reason to suspect that people on the premises are carrying items that reasonably could be objects of the search warrant, the officer may detain and search them to determine whether they are concealing items covered by the warrant. Return of the Warrant. After conducting the search, the Service officer must promptly return the original warrant with a list of all items seized to the U.
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Magistrate Judge or other issuing authority. See FW 3. Service officers may seize the following items when they find them during a lawful search Rule 41, Federal Rules of Criminal Procedure :. Contraband or Fruits of Crime. These are items that are unlawful to have, such as narcotics, certain firearms, or illegally taken or traded wildlife. If a warrant does not specifically list the contraband, the incriminating nature of the item s must be readily apparent. Instruments of Crime. This is property designed or intended for use or that is or was used as the means of committing a crime i. Evidence of Crime.
Any item that constitutes evidence of a crime is subject to seizure. However, officers may only seize items or property that appears reasonably necessary to aid in an apprehension or conviction. The item must appear to be related to the crime under investigation. See FW 3 , Evidence, for detailed information about itemizing and providing receipts for seized property. Whenever officers conduct a search but do not seize property, they must leave some documentation with the person involved that explains there was a search but no seizure.
Officers should ask the owner of the property that was searched to sign the documentation. If possible, the owner should sign with another officer witnessing the signature. If the owner will not sign, the officer should document the refusal to sign. Officers should keep one copy of the documentation and leave one with the person who signed it. Fish and Wildlife. Service, Department of the Interior, conducted a search of the premises. I certify that nothing was removed from my custody. Fish and Wildlife Service. The exclusionary rule says that evidence Federal or State officers obtain by unreasonable illegal searches and seizures cannot be introduced in a criminal proceeding against the defendant.
Extent of Exclusions. Generally, all improperly obtained evidence is excluded.
This includes all evidence obtained by exploiting improperly obtained evidence i. The fruit is any information, object, or testimony that officers uncover or obtain, directly or indirectly, through the illegally seized evidence—items and information that officers would not have obtained if not for the initial illegally obtained evidence.
Non-criminal Proceedings. Many courts are applying the exclusionary rule to non-criminal proceedings when the Government imposes some penalty.
For example, the State of Pennsylvania applied it in an automobile forfeiture proceeding for transporting narcotics. Service officers should assume that the exclusionary rule applies in Service civil penalty and forfeiture proceedings. Most of the Service-enforced statutes in section 1. Some of these laws, however, are silent when it comes to specifically authorizing searches without warrants, as are most other statutes that outline the powers of Federal officers.
In Aiuppa v. United States, F. Since the Aiuppa decision, Congress amended many Service statutes to authorize warrantless searches. Some Service statutes provide authority to search with or without warrant, as authorized by law. Under certain circumstances, there are exceptions to warrant requirements.
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These may include, but are not limited to:. Searches incident to arrest section 1. Exigent circumstances section 1. Consent searches section 1. Vehicle searches section 1. Inventory searches section 1.
Border Searches section 1. General Rule. In the course of an arrest, a Service law enforcement officer may search the arrested person without a warrant for contraband, weapons, and other evidence. This guideline applies both to felonies and misdemeanors where the officer takes the accused into physical custody. Arrest Must Be Lawful. If the arrest is unlawful for any reason, the search incident to the arrest is also unlawful, and any fruits of such a search are inadmissible in court.
Such fruits include physical evidence obtained as a result of the search, confessions or incriminating statements made by the accused while illegally detained, and leads obtained during this time. Scope of Search.