Court limits cell phone searches without warrant or consent

In a case of first impression in Arizona, the Arizona Court of Appeals tossed out an unlawful police search of a suspect’s cell phone. Applying Supreme Court precedent, the Court held that police cannot search the cellphone of someone they have not arrested without either a warrant or the owner’s consent.

In State v. Feliciano Ontiveros-Loya, the court of appeal rejected arguments that Pima County sheriff’s deputies had a right to look through the cell phone during their investigation of whether the suspect threatened a woman who said he had a weapon.

Officers found a picture of a silver handgun on the phone. Although officers never found a gun, the evidence was used to convict Ontiveros-Loya on charges of illegal firearm possession. He was sentenced to eight years in prison.

But the Court of appeals held that deputies had no legal reason to look at the phone. Although officers did eventually obtain a warrant, evidence suggested that pictures on the phone — to which the police had no lawful right to access — were improperly used as the basis for the search warrant.

The Court explained that although police can take possession of a cell phone to prevent suspects from erasing incriminating information, the court concluded this was not a threat here because the suspect was placed in a patrol car and the cell phone was in his motel room.

Even if the phone was properly seized to prevent deletion of evidence, the police would have to obtain a search warrant based on a showing of probable cause before a judge.

The Court cited to U.S. Supreme Court precedent in Riley, which pointed out the significant role that such electronic devices play in people’s lives:

In Riley v. California, the Supreme Court considered “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” ___ U.S. ___, ___, 134 S. Ct. 2473, 2480 (2014). There, officers searched each arrestee’s person incident to arrest and found cell phones, which the officers also searched. Id. at ___, 134 S. Ct. at 2480-81. The Court observed that the two risks identified in Chimel—harm to officers and destruction of evidence—do not exist when the search is of digital data. Id. at ___, 134 S. Ct. at 2484-85. The Court also reasoned that “[a] search of the information on a cell phone bears little resemblance to [a] brief physical search” because “[c]ell phones . . . place vast quantities of personal information literally in the hands of individuals.” Id. at ___, 134 S. Ct. at 2485.  Thus, the Supreme Court held that “officers must generally secure a warrant before conducting” a search of a phone found on the person of an arrestee. Id.

The Deputies denied using the photos to get the search warrant that they obtained, but prosecutors never produced the affidavits used for the warrant.

As such, the Court held: “There was no testimony that would allow the court to conclude the officers could have obtained the warrant to search the cell phone without the photographs found in the initial search.”

The appellate court also concluded that there was no evidence that the suspect’s consent to search the motel room necessarily included the right to search the phone, and remanded the case for a limited hearing on whether the suspect consented to search the phone, a contention which Ontiveros-Loya’s attorney, Pima County Public Defender Erin Sutherland-Martinez, disputes.

Here is the Court’s  decision.

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