Nearly 90% of American adults have cell phones. When one of those cell phone users is arrested, may police search their mobile phone incident to arrest? The Fourth Circuit recently answered that question in the affimative. See United States v. Murphy, __ F.3d __, 2009 WL 94268 (4th Cir. Jan. 15, 2009). The defendant in Murphy was a passenger in a car that was stopped for speeding. He gave a false name to the police, they figured it out, and he was arrested for obstruction of justice. Counterfeit currency and drug-related items were found in the car. The police searched Murphy's cell phone incident to arrest, and obtained phone numbers they later used to develop additional evidence against Murphy. Murphy was charged with drug and currency offenses, and moved to suppress, arguing that the police should have obtained a warrant to search the phone. Neither the district court nor the court of appeals agreed. The Fourth Circuit said that the "manifest" need to preserve evidence justified police in retrieving "text messages and other information from cell phones and pagers seized incident to an arrest." There's some logic here: over time, new messages and calls will "crowd out" earlier ones from the phone's memory, effectively destroying potentially relevant evidence. Murphy agreed that when a phone has a small storage capacity, the need to preserve evidence justifies a warrantless inspection of a cell phone, but he contended that when a phone has a large storage capacity, the risk of losing critical evidence is [...]
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