670 F.3d 803 (7th Cir. 2012), 10-3803, United States v. Flores-Lopez

Docket Nº:10-3803.
Citation:670 F.3d 803
Opinion Judge:POSNER, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Abel FLORES-LOPEZ, Defendant-Appellant.
Attorney:Joshua J. Minkler (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee. Jonathan W. Garlough (argued), Attorney, Foley & Lardner LLP, Chicago, IL, Thomas L. Shriner, Jr., Attorney, Foley & Lardner LLP, Milwaukee, WI, for Defendant-Appellant.
Judge Panel:Before BAUER, POSNER, and ROVNER, Circuit Judges.
Case Date:February 29, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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670 F.3d 803 (7th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Abel FLORES-LOPEZ, Defendant-Appellant.

No. 10-3803.

United States Court of Appeals, Seventh Circuit.

February 29, 2012

Argued Jan. 25, 2012.

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Joshua J. Minkler (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Jonathan W. Garlough (argued), Attorney, Foley & Lardner LLP, Chicago, IL, Thomas L. Shriner, Jr., Attorney, Foley & Lardner LLP, Milwaukee, WI, for Defendant-Appellant.

Before BAUER, POSNER, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a laptop or desktop computer, tablet, or other type of computer (whether called a " computer" or not) can be searched without a warrant— for a modern cell phone is a computer.

Law enforcement authorities had reason to believe that the defendant was a supplier of illegal drugs to another drug dealer, Alberto Santana-Cabrera, who in turn had a retail customer who unbeknownst to him was a paid police informant. The informant, after ordering a pound of methamphetamine from Santana-Cabrera (a large quantity— the informant's hope was that it would induce Santana-Cabrera's supplier to attend the sale, thus enabling the police to land a bigger fish), overheard a phone conversation between Santana-Cabrera and the defendant in which the latter said he would deliver the meth that had been ordered to a garage, where the sale would take place. The police were listening in on the conversation remotely and arrested Santana-Cabrera in the garage and the defendant in front of it.

The defendant had driven a truck containing the meth to the garage, and together with Santana-Cabrera had carried the meth into the garage to await a fourth person (actually an undercover agent), who was to bring the cash for the deal. Upon arresting the defendant and Santana-Cabrera, officers searched the defendant and his truck and seized a cell phone from the defendant's person and two other cell phones from the truck. The defendant admitted that the cell phone found on his person was his but denied that the other cell phones were.

He was tried together with Santana-Cabrera and both were convicted of drug and related offenses. The defendant was sentenced to 10 years in prison. Their appeals were consolidated, but we are deciding Santana-Cabrera's appeal in a separate order, also issued today.

At the scene of the drug sale and arrests, an officer searched each cell phone for its telephone number, which the government later used to subpoena three months of each cell phone's call history from the telephone company. At trial the government sought to introduce the call history into evidence. The history included the defendant's overheard phone conversation with Santana-Cabrera along with many other calls between the defendant and his coconspirators. After a brief

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hearing the judge overruled the defendant's objection, which however was limited to the call history of the cell phone that he admitted was his, since he denied owning or having used the other cell phones.

The defendant argues that the search of his cell phone was unreasonable because not conducted pursuant to a warrant. The phone number itself was not incriminating evidence, but it enabled the government to obtain such evidence from the phone company, and that evidence, the defendant argues, was the fruit of an illegal search and was therefore inadmissible.

Building on the definition in New York v. Belton, 453 U.S. 454, 460 n. 4, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), of a container as " any object capable of holding another object," the government responds, with support in case law, see, e.g., United States v. Murphy, 552 F.3d 405, 410-12 (4th Cir.2009); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.2007); cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (pager); United States v. Thomas, 114 F.3d 403, 404 n. 2 (3d Cir.1997) (dictum) (same); but see State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949, 953-54 (2009), that any object that can contain anything else, including data, is a container. A diary is a container— and not only of pages between which a razor blade or a sheet of LSD could be concealed, a possibility that justifies the police in turning each page. It is also a container of information, as is a cell phone or other computer. And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don't suspect that the container holds a weapon or contraband, and thus without any justification specific to that container, United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched.

This is a fair literal reading of the Robinson decision. But the Court did not reject the possibility of categorical limits to the rule laid down in it. Suppose the police stop a suspected drug dealer and find a diary, but a quick look reveals that it is a personal diary rather than a record of drug transactions, yet the officers keep on reading. A court might say that acquiring information known to be unrelated to the crime of which the person being arrested is suspected is an intrusion beyond the scope of Robinson 's rule.

A modern cell phone is in one aspect a diary writ large. Even when used...

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