IA- Accidental accessing of child porn when attempting to turn off cellphone on booking was [reluctantly] a plain view

8-8-2009 Iowa:

Accidental accessing of pictures on a cellphone when attempting to turn it off before storage during defendant's booking revealed child porn pictures. This was not an unreasonable search because it was accidental and resulted in a plain view. Search incident, as argued by the government, would not apply because the phone was not a part of any crime. United States v. Yockey, 2009 U.S. Dist. LEXIS 67259 (N.D. Iowa August 3, 2009):

There is no dispute that Collison took Yockey's cell phone from him as part of standard booking procedures at the Woodbury County Jail. There also is no dispute that while performing these procedures, Collison did something that caused a pornographic image of a child to be displayed on the phone's screen, and he did so without a warrant to search the phone. The question is whether, under the circumstances of this case, this was an unlawful search.

A search warrant is required to search the contents of a cell phone unless an exception to the warrant requirement exists. United States v. Flores, 122 F. Supp. 2d 491, 494-95 (S.D.N.Y. 2000) (search of cell phone's contents not part of proper inventory search); see United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008) (possession of cell phone gives rise to reasonable expectation of privacy regarding its contents, citing United States v. Finley, 477 F.3d 250, 258-59 (5th Cir. 2007)); United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. 2009) (an owner of a cell phone has a reasonable expectation of privacy in the electronic data stored on the phone, citing Quon v. Arch Wireless Operating Co., 529 F.3d 892, 905 (9th Cir. 2008)). The Government bears the burden of establishing the exception. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 2032, 29 L. Ed. 2d 564 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).

The court finds that Collison had the right to turn the cell phone off as part of the jail's standard booking procedures. This was an entirely reasonable and standard administrative practice. Yockey had been arrested for driving with a suspended driver's license and taken to the jail. The jail was justified in removing his personal property from him before he was placed in the jail population. The jail also was justified in conducting an inventory of the property to document what was taken from him. However, the purpose behind these actions was not advanced by "general rummaging" through the cell phone's memory. See Florida v. Wells, 495 U.S. at 4, 110 S. Ct. at 1635; United States v. Park, 2007 U.S. Dist. LEXIS 40596, 2007 WL 1521573, at *11 (N.D. Cal., May 23, 2007) (no legitimate governmental interests served by searching contents of a cell phone as part of booking process); United States v. Wall, 2008 U.S. Dist. LEXIS 103058, 2008 WL 5381412, at *4 (S.D. Fla., Dec.22, 2008) (same). There simply was no need to search the cell phone's memory to accomplish the purposes of the inventory search. Under the circumstances in this case, such a search was not a proper part of the inventorying process.

. . .

The court acknowledges that Collision's explanation seems, on the surface, to be implausible. However, after hearing all the evidence, which included a demonstration of the operations of the cell phone by the defense expert; considering the alternative explanations; and observing Collison's demeanor while testifying, the court finds him to be credible. Accordingly, the court finds that Collison's testimony concerning Yockey's booking, and the image Collison viewed on the cell phone during the booking process, should not be suppressed.

..Source.. by The FOurth Amendment Blog