Search of an arrestee’s cell phone 80 minutes after his arrest does not fall within the search incident to arrest exception to the warrant requirement. Border patrol agents arrested Camou and his girlfriend after an undocumented immigrant was found in their truck. Eighty minutes later, without a warrant, agents searched Camou’s cell phone for evidence of alien smuggling. Agents found images of child pornography. The U.S. Attorney did not pursue alien smuggling charges because Camou’s case “did not meet prosecution guidelines.” However, a grand jury indicted Camou for possessing child pornography (18 U.S.C. § 2252(a)(4)(B)). Camou moved to suppress the images found on his phone. The district court denied the motion on many different grounds including that the search fell within the search incident to arrest exception to the warrant requirement. Camou entered a conditional guilty plea and appealed. Held: Reversed. The search incident to arrest exception has two requirements: (1) the search be limited to the arrestee’s person or areas in his immediate control at the time of arrest, and (2) the search must be spatially and temporally incident to the arrest, which the Ninth Circuit has interpreted to mean that the search must be “roughly contemporaneous with the arrest.” Here, the government did not meet the second requirement. The search of Camou’s cell phone occurred 80 minutes after his arrest and there were many intervening events between the arrest and the search. Prior to the search, Camou was handcuffed, moved from the checkpoint area to the security offices, and interviewed as part of the booking process. Police inventoried the phone as a seized item, attempted to interrogate Camou (who invoked his right to counsel), and interviewed Camou’s companions. The delay coupled with the intervening events signaled that the arrest was over by the time agents searched the cell phone.
The exigency exception did not apply because there was no evidence that defendant’s cell phone information would be destroyed if officers waited for a warrant before searching it. The government also argued that a warrant was not needed to search Camou’s cell phone because “the volatile nature of call logs and other cell phone information with the passing of time” presented an exigent circumstance. The Ninth Circuit disagreed. The exigency exception has two requirements: (1) the officers have probable cause to believe that the item or place to be searched contains evidence of a crime, and (2) the officers are facing exigent circumstances that require immediate police action, like the possibility that evidence will be destroyed if they wait for a warrant. Here, the government could not meet the second requirement. Riley v. California (2014) 134 S.Ct. 2473, recently held that once officers have secured a cell phone, they cannot claim exigent circumstances required a warrantless search unless they are faced with a “now-or-never” situation. Here, the 80 minute delay between the time agents arrested Camou and secured his phone and the time they searched it indicates that agents were not faced with such a predicament.
The automobile exception to the warrant requirement does not permit a search of a cell phone found inside a vehicle because cell phones are not containers. The government further argued that the search of Camou’s cell phone was proper under the automobile exception, which allows officers to search a vehicle and containers in it without a warrant so long as they have probable cause to believe the vehicle or containers contain evidence of criminal activity. The court disagreed. In Riley v. California (2014) 134 S.Ct. 2473, 2491, the court examined the definition of “container” as it would apply to cell phones in the context of the search incident to arrest exception, finding that “[t]reating a cell phone as a container whose contents may be searched . . . is a bit strained as an initial matter. But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen.” The Ninth Circuit concluded that there was “no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception.” Cell phones are unlike any other object an officer may find in a vehicle (such as luggage, boxes, bags, clothing) and implicate privacy concerns beyond those implicated by other container examples that the U.S. Supreme Court has provided in the vehicle context. The search of Camou’s cell phone was not permitted under the automobile exception.
Inevitable discovery exception to the exclusionary rule did not apply. The district court also found that even if the search was constitutional, the inevitable discovery exception to the exclusionary rule applied. The Ninth Circuit disagreed. If the government can establish by a preponderance of the evidence that the unlawfully obtained information “ultimately or inevitably would have been discovered by lawful means,” the exclusionary rule will not apply. (Nix v. Williams (1984) 467 U.S. 431, 444.) Here, the government did not prove that it would have applied for a warrant to search Camou’s cell phone for evidence of alien smuggling activity. Instead, the record showed that no search warrant would have been sought because agents knew Camou would not be charged with alien smuggling. Additionally, the government was essentially asking the court to “excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant.” (United States v. Mejia (9th Cir. 1995) 69 F.3d 309, 320.) The court has never applied the inevitable discovery exception in these circumstances.
Good faith exception to the exclusionary rule did not apply because a reasonably well-trained officer would have known that the search of the defendant’s cell phone 80 minutes after his arrest was unlawful. Additionally, the district court found that the good faith exception to the exclusionary rule applied. The Ninth Circuit again disagreed. The burden of demonstrating that the good faith exception applies rests with the government. Here, the government did not prove that a reasonably well-trained officer could have believed that a search 80 minutes after an arrest was lawful because the governing law at the time clearly established that a search incident to arrest must be “contemporaneous” with the arrest. (See, e.g., United States v. Hudson (9th Cir. 1996) 100 F.3d 1409, 1419.) The court rejected the government’s argument that the good faith exception applied because the officer did not act through reckless or deliberate misconduct and that United States v. Herring (2009) 555 U.S. 135 controlled. Herring applied the good faith exception where the officer had reasonably relied on a county clerk’s assertion that the defendant had an active arrest warrant, which was based on another law enforcement employee’s negligent bookkeeping entry. Here, the government did not assert that the agent relied on anyone else in conducting his search of the cell phone. The U.S. Supreme Court has never applied the good faith exception to excuse a searching officer’s own negligence.