Drivers pulled over for minor traffic violations can have their cell phone searched, according to a recent federal ruling. A judge decided last week that Oklahoma City, Oklahoma police were in the right when they downloaded information off the mobile phone belonging to Noe Vergara Wuences who was pulled over on March 22, 2012 because the temporary paper license plate on his new car flapped a bit in the wind.
During the stop, Officer Scott McCall asked Wuences about his travel plans. At 12 minutes into the traffic stop, Officer McCall radioed for a drivers license check. A few minutes later the license came back clean, so Officer McCall asked dispatch to send a canine unit. At this point, Officer McCall asked Wuences if he could search the car. Wuences said he “doesn’t mind.”
The drug dog alerted on the methamphetamine in the vehicle and Wuences was arrested. Officer McCall took the Nokia 1616-2C and ZTE X500 mobile phones that were in the car and began using a Cellebrite UFED device to download all of the data. Many police departments, even in small towns, use this portable unit to crack cell phone passwords and grab emails, text messages, phone records and photographs automatically. Officer McCall failed to download the Nokia data, but he wrote down the phone log information manually.
The Oklahoma City officer did not seek a warrant before gathering the data, so Wuences and his attorney, John M. Dunn, argued this was a Fourth Amendment violation. The courts have created an “automobile exception” to the prohibition on warrantless searches that allows an officer to look in closed containers found in a vehicle because of the reduced expectation of privacy when driving. Given the large amount of data contained on modern cell phones, Dunn argued the exception should not apply.
“Because the courts have recognized the technological change in cellular phones which is elevated them from being analogous to a ‘beeper’ which had extremely limited data storage capability, and has now recognized that they are more like handheld computers containing large amounts of personal and private information, which should not be subject to ‘rummaging’ on the part of the government merely because it is located in a vehicle,” attorney John M. Dunn argued.
Officer McCall manually searched all areas of the cell phone’s memory, not just the parts that could be reasonably related to drug trafficking. Dunn noted that the officers made no attempt to prevent the phones from being remotely wiped. US District Judge Gregory K. Frizzell was not persuaded.
“The court finds, based on the record at the evidentiary hearing, that there was probable cause to believe the cell phones contained evidence of a crime,” Judge Frizzell ruled. “Further, the court finds that officers had reason to believe there was a risk that the evidence could be destroyed by remote means.”
Wuences accepted a plea bargain and entered a guilty plea after the ruling was issued.
U.S. v. Zaavedra ruling: http://thenewspaper.com/rlc/docs/2013/us-cellsearch.pdf
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