Searches of Cell Phones W/O Warrant Upheld

WOW, I did not notice it had been so long since I added to this blog. I guess with only six followers it isn't a monumental issue. It is kinda like talking to yourself......Anyway.

People v Nottoli, CA 6th Court of Appeals, September, 2011. OK OK, I know it is only a California court of appeals decision and has no affect anywhere else in the world, it may just be upheld by the California Supreme Court.

Nottoli and his girlfriend were driving along at 90 MPH on a 45 MPH zone early one morning and were stopped by a local sheriff deputy. You know the drill...speech rapid, eyes blown out, sweating on a cold night. Enough where the deputy thought he was driving under the influence of a controlled substance. The deputy ultimately arrests Nottoli for that, cuffs him, and places him in the cage of his car.

OK, there are a couple of things going on here with the 4th Amendment. First, a case decades ago said that cops can search the interior of cars and all contents therein "incident to an arrest" That was black letter law for a really long time....that is until the Gant case came along a couple of years ago. There, the Supremes said not so fast. It,(to them) does not make sense to allow a search incident to arrest of a car if the bad guy is already restrained. The idea behind Belton was to protect cops from weapons the bad guy might go for in the car so a search was "reasonable" without a warrant. SO, if the arrestee is secured in the cop car, then the search of the interior of the car incident to the arrest is not allowed. Gant, however, also said the ruling did not affect the Ross holding and if probable cause to believe there is evidence of crime in the car, then the cops can search without a warrant.

In Nottoli, the deputy searched the car after arresting and securing Nottoli, counter to the holding in Gant, some would say. But, wait, there's more!!!. Shifting back a couple of decades, a case called Ross came along and Ross said: If a cop has probable cause to believe a vehicle contains evidence of crime, then no search warrant is required and the entire vehicle can be searched for evidence. Gant also said that. So, OK, it looks like the deputy in Nottoli is off the hook, right? Yes he was, so said the CA Court of Appeals. Here Nottoli was found to be under the influence of a controlled substance and arrested and it was deemed reasonable to conclude there may be evidence of crime (dope) in the vehicle. So far so good. The deputy saw a cell phone later determined to be Nottoli's in the cup holder. The deputy checked it to see if it worked and then went through the text messages and found photos of Nottoli with illegal weapons (he was a convicted felon) and evidence of drug dealing. The trial court suppressed this evidence because the cell phone search was without a warrant. Well, searches of vehicles based not on an arrest but on probable cause allow searches of all of the vehicle and all "containers" in the vehicle. In basic terms, the court in Nottoli held that the data in the cell phone can be accessed and searched since the cell phone was a "container" within the automobile.

So, here is how it works. Cop stops car for speeding. Driver is under the influence of dope. Driver is arrested. Any cell phone found on driver or in his vehicle can now be searched and the data downloaded as it pertains to the crime of driving under the influence of dope. If any other crimes are discovered (like kiddie porn photos in the phone for example), then the defendant can be charged with those crimes as well.

I agree with the constitutional rationale and the outcome of this case, but I bet the defense attorneys are going to go nuts over this one. It is a broad new tool for law enforcement. We will see if the California Supreme Court will uphold it and if the U.S. Supreme Court will affirm as well. Oh, by the by......What if Nottoli's lap top computer was in the car?.....is it a "container"......Interesting, don't you think?