A case law question... Looking for clearification.

[northLAdep]

I have a question for you guys regarding case law. I am looking for citation of cases that support or defeat my side of the argument. Here is the scenario:

I detain a female adult regarding a trespassing investigation. While contacting her I determine she displays signs of being under the influence. I do FST's and determine she is under the influence of a stimulant (meth). I arrest her for being under the influence. Under Miranda she admits to using meth recently.

When I first contacted her she was holding a purse. I searched her purse incident to arrest, looking for drugs, weapons, etc. I find a digital camera. I look thru the camera's memory for pictures of her using dope or any other drug related pictures. There were no incriminating pictures on the camera.

She ends up complaining several weeks after the arrest that we stole her memory card from her camera because there were naked pictures of her on it.

The question surfaced: was the search of the camera incident to her arrest a legal search???

I looked for case law regarding it but was unsuccessful. Perhaps due to the fact I worked all night, but anyways. I know cell phones are searchable. Do digital cameras fall under the same criteria?

[adeutch]

I might be misunderstanding the situation, but my first thought is that no evidence was found on the camera. So no exclusionary rule or constitutional implications.

[DAL]

You should be OK with respect to civil liability because there is certainly a legal basis for what you did, even if the courts later sort it out differently.

I found only one case that mentioned a digital camera, and that case involved a search warrant.

Many of today's cell phones are also digital cameras, and the memory cards in digital cameras are general-purpose storage devices that hold image files. There definitely are cases that support searches of cell phones found on the person of an arrestee, but the law in the area is in flux. Searches of photographs on the arrestee's person are clearly permissible.

There is a case before the California Supreme Court, People v. Diaz, that deals with the search of cell phones incident to arrest. It should be decided soon.

[just joe]

There is case law that states you cannot view the contents of a camera during a simple inventory of property. If I was a defence atty, I would want to know what your PC was to believe that the camera or its contents were evidence of a crime. As stated above, you can search cell phones and look at actual photos, but as far as looking at camera contents without PC or a warrant...I don't know.

[DAL]

If the woman was DUI, there could be photos of a party or event that she was at, including photos that might tend to show that she and others were intoxicated, or might identify witnesses. Unlike a film-based camera, viewing the photos on a digital camera is a non-destructive process.

[Smurfette_76]

Perhaps I'm missing something, but case law would be the criminal side of the house. However, you didn't find anything that you want to enter in as evidence so this isn't a criminal matter. She made a complain that you stole something...that's an accusation of criminal behavior on YOUR behalf and it's my POV that she should have to prove a criminal act on your part, just as you would hers. However, for the purposes of articulating (in your report) why you went into the phone, I would state you were looking evidence of her meth use. In MY OWN training and experience I can articulate digital camera often contain evidence of illegal drug use.

[FiremanMike]

I would personally think that a search of a cell phone and/or a camera in this particular case would be a 4th amendment violation. There is no exigent reason to search this camera that I can see. If it were me, I wouldn't do it without a warrant in this particular case.

[DAL]

There seems to be an unexplained jump from looking at what is on the memory card to stealing the memory card. Looking at the contents of the card could possibly violate her civil rights, but taking it definitely would be a crime. Having a right to examine the contents of the card would not give you a right to keep it.

If you did not put the memory card in evidence, then it should have been in her belongings. To protect yourself from allegations of theft, you should have listed it separately as a property item. Many cellphones (smartphones except for iPods) have memory cards, too. It might be a good idea in the future to list them separately on the property inventory.

[adeutch]

Perhaps I'm missing something, but case law would be the criminal side of the house. However, you didn't find anything that you want to enter in as evidence so this isn't a criminal matter. She made a complain that you stole something...that's an accusation of criminal behavior on YOUR behalf and it's my POV that she should have to prove a criminal act on your part, just as you would hers.

That's what I'm sayin'. There really shouldn't be a 4th amendment issue here because there was no evidence on the camera that you're seeking to admit. So basically this is no different than if you searched her purse for weapons and later she accused you of stealing $20.
For the future though, I'd keep searching cameras until a supervisor or DA tells you to stop it. Sounds like some courts would let the photos in and if it's your typical DUI or something like that, the photos probably wouldn't make or break the case for you anyway. In that same vein, if you're arresting someone because you suspect them of child pornography or something like that, where the photos are going to be the entire case, you would obviously want a warrant. Just not worth the risk of losing that evidence or poisoning the State's whole case, IMO.

[Taylor1430]

I would personally think that a search of a cell phone and/or a camera in this particular case would be a 4th amendment violation. There is no exigent reason to search this camera that I can see. If it were me, I wouldn't do it without a warrant in this particular case.

I agree. I say its a violation of the 4th ammendment. I see it along the lines of a cell phone *possibly* used in a crime. I would have obtained a search warrant to search the camera...being able to articulate why there was a need to check the camera for a possible crime and if any evidence located was going to be used against her.

[Dinosaur32]

If you already had PC to arrest for DUI, then obviously you do not have any emergent need to search the camera. Get a warrant. If you're not sure about your PC for the collar, get a warrant. Pictures of her activities may have absolutely no relevance to the instant charge. Without a warrant you may then lose any evidence you find on the camera of other crimes.

[Name Taken]

SIA is given for evidence of the crime which is readily at hand to be destroyed and for officer safety.

The stored images on a camera are neither.

The only semi relavent case law I can think of pertains to pagers and numbers in cell phones.

We have a SOP stating that phones are touchy and SW's should be considered in many situations.

If I can relate the cell phone to a robbery and take it SIA I'm getting paper for the phone and it's records before digging into it at this point. I think the law has teetered and it hasnt decided yet. But the images on the phone arent going anywhere and they cant hurt you.

And to change the topic...what are you going to do when you find kiddie porn on the camera?

[northLAdep]

To clarify the stolen card issue: We left all her property in her car which was on scene at her request so we wouldnt have to book it. She was ****ed off she got arrested, hence the claim we stole it. No big deal.

I contacted a district attorney that puts out updates on case law all the time for California. He said the search would be good to go. The camera that was on her person is the same thing as a closed container. You just have to articulate in the report why you believe there is evidence located on the camera. He does say that this will likely change very soon, making digital devices much harder to get into without a warrant.

[DAL]

I believe that is what I said in #3 -- waiting for Diaz to be decided. Also, there is a bad case from the Ninth Circuit on searching computers, even with a warrant.

[Arec]

This is from a Springdale, Ar. city attorney quarterly letter (http://www.springdaleark.org/cosa/pdf/2007.4.CALL.pdf)

Search Incident to Arrest: Do They Apply to Cell Phones?

On January 26, 2007, the United States Court of Appeals for the 5th Circuit issued its opinion in the case of U.S. v. Finley. This case originated on August 19, 2005, when officers from the Midland, Texas Police Department made a controlled purchase of methamphetamine from an individual who was a passenger in a vehicle. After the sale was completed, the vehicle was pulled over. The passenger and the driver of the vehicle were both arrested and the vehicle was searched. Methamphetamine was found in the vehicle.

A search of the driver incident to arrest revealed a cell phone in his pocket. One of the officers searched through the phone’s call records and text messages. Several of the text messages appeared to be related to narcotics use and the trafficking of narcotics. The driver was subsequently indicted on drug trafficking charges. At trial, the driver asked the Court to suppress the evidence obtained from the search of the cell phone that was found in his pocket. The driver claimed that the search of his cell phone was illegal because it was conducted without a search warrant. The government contended that the search of the cell phone was a lawful search incident to arrest of the driver. The Court concluded that the search of the cell phone, which included the retrieval of call records and text messages, was lawful and denied the driver’s motion to suppress.

The Court recognized that the full search of a person who is lawfully under arrest is a recognized exception to the warrant requirement of the 4th Amendment, and that this search is not limited to a search for weapons. Furthermore, the police may, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve the evidence for trial. It has also been held that the permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person. The police may search containers, whether open or closed, located within arrestee’s reach, such as the search of a closed cigarette package on the arrestee’s person. Another example would be the retrieval of information from a pager found on the arrestee as a search incident to arrest.

Therefore, in this case, the Court held that the state was allowed to search the driver’s cell phone, which was found in his pocket, as a search incident to his arrest.

It should be noted that U.S. v. Finley is a case from the 5th Circuit. Arkansas is in the 8th Circuit. As such, this case would only have persuasive authority in Arkansas, and not controlling authority. I could find no case law in the 8th Circuit dealing with searches of cell phones incident to an arrest. However, the analysis employed by the 5th Circuit in U.S. v. Finley is based largely on United States Supreme Court decisions involving searches incident to arrest. As such, it is my opinion that a search based on a similar fact scenario in the State of Arkansas would be a lawful search.

[Smurfette_76]

I think Arec, the difference between the phone and the camera is simply that the phone can be changed (the data therein) as calls or text messages might continue to roll in. That IS the justification behind the SIA of the phone w/o a warrant. However, unlike some of my fellow brothers here, I search a camera as well because 1) I haven't seen case law that says I can't and 2) I feel I can articulate same.

[yellowreef]

There were no incriminating pictures on the camera.

She ends up complaining several weeks after the arrest that we stole her memory card from her camera because there were naked pictures of her on it.


Hmm, I see you are staying away from saying whether it is true or not that there were naked pictures. :D

[dh91040]

Here are some articles that may be of interest:

"The iPhone Meets the Fourth Amendment," by Adam M. Gershowitz J.D. (hit the "download" tab above the abstract and select Stanford to get the whole article). (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1084503)

"Searching Cell Phones Seized Incident," By M. Wesley Clark, J.D., LL.M., FBI Law Enforcement Bulletin, February 2009. (http://www.fbi.gov/publications/leb/2009/february2009/february2009leb.htm#page25)