Fifth Circuit: U.S. Court of Appeals Allows Search of Cell Phone Text Messages without Warrant, After Arrest


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The popularity of Short Message Service (SMS), text messaging, originated in Europe and Asia before captivating American cell phone users, according to a 2008 CBS News report. SMS’ sudden popularity was linked directly to cost: it was cheaper to send short text messages than to make an actual phone call. CBS News pointed out that it cost less than a penny to send a text message in 2008. Perhaps it was also the cost factor that caused Americans, especially the young, to fall “head on heels” in love with texting in 2008.  According to CTIA, the wireless industry trade association, Americans sent an average of 2.5 billion text messages per day that year, an increase of 160 percent over 2007. This SMS surge was fueled by teens between 13 and 17 who sent and received an average of 1,742 messages per month. And the SMS explosion in America did not escape the economic attention of the cell phone providers: the cost of sending and receiving text message increased by a whopping 100 percent during this same time period.


SMSs also caught the attention of law enforcement and the courts. We recently posted a piece concerning a decision in which the California Supreme Court ruled that the police may read and seize test messages stored on an accused suspect’s cell phone “incident to a lawful arrest.” Actually the 2011 California ruling has been precedent law here in the Fifth Circuit since 2007 when that federal appeals court handed down United States v. Finley. While we cited Finley in our previous post, we did not give it adequate attention.


Jacob Pierce Finley was convicted of one count of aiding and abetting possession with intent to distribute methamphetamines (meth). At the time of his August 2005 arrest in Midland, Texas by the local police and DEA agents Finley was working for a plumbing company owned by his uncle. As a tool of his employment, Finley was assigned a cell phone with which he was authorized to make personal cells along his business-related calls.


Law enforcement attention focused on Finley after the Midland police and DEA agents set up an undercover meth buy from a local dealer named Mark Brown. The DEA used one of its confidential informants (“CI”) to arrange the drug purchase. The CI contacted Brown telling him that she wanted to purchase $600 in meth but could not come to Brown’s residence because she was at a truck stop with no transportation. Brown agreed to meet the CI at the truck stop where the DEA gave her $600 in marked bills.

As luck would have it, Finley contacted Brown about a drug buy shortly after Brown finished his conversation with the CI. Finley had known Brown about six months and during that time had purchased meth from the drug dealer at least a half dozen times. Finley was calling about another meth purchase when Brown told him that he needed a ride to the truck stop. Finley agreed to take the drug dealer to the truck stop in exchange for a little extra meth. Brown agreed, whereupon Finley drove to Brown’s residence in a company van where he scored 0.3 gram of meth, 0.1 gram being for the ride he was giving to Brown to the truck stop.


When Finley and Brown arrived at the truck stop, the CI approached the van on passenger side where Brown was sitting. She handed Brown the $600 in marked currency and he gave her a cigarette package containing a plastic bag of white crystalline substance which tested out to be a 3.1 gram mixture, of which 1.4 grams were pure meth.


With the deal done, Finley drove out of the truck stop area. He had driven three to five miles when the Midland police stopped the van and conducted a “traffic stop.” Once Finley and Brown were secured and detained, the police conducted a search of the van in which they found the marked bills used in the meth buy. They also found two medicine bottles—one of which had meth in it and the other a small homemade smoking pipe with meth residue in it. The latter bottle had Finley’s name on it. Finley and Brown were both formally arrested at the traffic stop scene.


The two suspects were transported to Finley’s residence where other Midland police officers and DEA agents were conducting a search of the residence. Two officers—one a Midland police sergeant and the other a DEA agent—began interviewing Finley while still at Brown’s residence. While he admitted prior meth use and an association with Brown, Finley told the interrogators he had nothing to do with the meth deal involving the CI. During this interrogation, a Midland officer handed a DEA agent Finley’s cell phone. The agent discovered some text messages on the phone. Finley told him the messages referred to marijuana, not meth.


The Government’s case against Finley was that he drove Brown to the truck stop knowing the drug dealer was going to sell meth to the CI and thus aided and abetted Brown’s possession with intent to distribute the drug. Finley testified in his own defense, telling the jury he had driven Brown to the truck stop where he could purchase some cigarettes and did not know about the drug transaction until after it was over. The jury didn’t buy the defense. The Government had countered this defense with testimony from Brown and the incriminating text messages found on Finley’s cell phone.


Finley had sought to have the text messages suppressed as a violation of his Fourth Amendment right against unreasonable searches. The Government initially sought to rebut Finley’s Fourth Amendment challenge on the premise that he did not have a reasonable expectation of privacy in the business cell phone. The Fifth Circuit firmly rebuffed the Government’s lack of “standing” position. Quoting from its 1998 decision in United States v. Cardoza-Hinojosa, the appeals court said a defendant has a reasonable expectation of privacy sufficient to question the validity of a search if “’(1) the defendant is able to establish an actual, subjective expectation of privacy with respect to the place being searched or items being seized, and (2) … that expectation of privacy is one which society would recognize as reasonable.’” In reaching such a determination, the court said it would consider the following factors: “whether the defendant has a [property or] possessory interest in the thing seized or the place searched, whether he had a right to exclude others from that place, whether he had exhibited a subjective expectation of privacy that it would remain free from governmental intrusion, whether he took normal precautions to maintain privacy [,] and whether he was legitimately on the premises.”


The Fifth Circuit upheld the trial court’s decision that even though the cell phone had been issued by an employer, Finley nonetheless maintained a property interest in the phone because he had a right to exclude others from using it, he had exhibited a subjective expectation of privacy in it, and took normal precautions to maintain his privacy in it.


Having found that Finley had a reasonable expectation of privacy in the cell phone, the Fifth Circuit turned its attention to whether the search of the phone and seizure of the text messages was proper “incident to a lawful arrest.” Citing United States v. Robinson, the Fifth Circuit said it is well-settled law that “police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence on the arrestee’s person in order to preserve it for use at trial .. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person.”


Relying upon United States v. Walter, Finley argued that while the seizure of his cell phone from his pocket was lawful, the police had no authority to examine its contents because it was analogous to a closed container. The Fifth Circuit rejected the Walter analogy “because in that case no exception to the warrant requirement applied … whereas here no warrant was required since the search was conducted pursuant to a valid custodial arrest … Special Agent Cook was therefore permitted to search Finley’s cell phone pursuant to his arrest.” The appeals court added: “The fact that the search took place after the police transported Finley to Brown’s residence does not alter our conclusion … In general, as long as the administrative processes incident to the arrest and custody have not been completed, a search of effects seized from the defendant’s person is still incident to the defendant’s arrest. Although the police had moved Finley, the search was still substantially contemporaneous with his arrest and was therefore permissible.”


The Fifth Circuit was forced to do the “Ali shuffle” around the firmly established rule pronounced by the Supreme Court in United States v. Chadwick in which the court held that “[o]nce law enforcement officers have reduced luggage and other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” Like Ali, the appeals court did the “rope-a-dope” around this inconvenient rule by declaring that “Finley’s cell phone does not fit into the category of ‘property not immediately associated with [his] person’ because it was on his person at the time of his arrest.”


The Fifth Circuit’s reasoning in Finley is about as clear as muddy water. First, the court said he had a “reasonable expectation of privacy” in the cell phone and its contents. But in order to make the subsequent search and seizure of the phone’s stored text messages an “incident to a lawful arrest,” the court found that those messages were not “property” immediately associated with his person because the phone was on his person at the time of his arrest. However, we would argue that the cell phone and its content (text messages) are not the same property.” Finley’s text messages are “intellectual property” not immediately associated with his person; they are content property stored in the cell phone which can be accessed by an individual not authorized to see/read them only through unlawful means.


We agree with Houston attorney Richard Kuniansky, Kuniansky & Associates, who represented Miquel Benitez-Rodriquez in the case of United States v. Garica-Aleman 1/ in the United States District Court for the Eastern District of Texas. In that case, after a traffic stop law enforcement officers seized Benitez’ cell phone and viewed telephone numbers and photographs stored on it. Attorney Kuniansky filed a motion to suppress arguing that while the officers may have had authority to engage in that conduct under the Finley rule, he believes the U.S. Supreme Court will ultimately decide that the search of the contents of a modern cell phone is not an “incident to a lawful arrest.”


We agree. We are hopeful that the Supreme Court will adhere to the same reasoning it expressed two years ago in Arizona v. Gant in which it said the search incident to a lawful arrest rule “does not authorize a vehicle search incident to a recent occupant’s arrest after the arrestee has been secured and cannot access the interior of the vehicle.”  The court made it clear to the lower courts that it would no longer tolerate the “broad interpretations” they have previously attached to these kinds of searches.


As we pointed out in our previous post on this subject, the Gant vehicle search rule should apply to cell phones. Once the owner of the cell phone is in lawful custody, he/she no longer poses any risk to destroy any “evidence” the cell phone may contain. Arresting officers should be required to procure a search warrant before searching the cell phone’s text messaging content, and then only if they have probable cause to believe it has been used in the commission of a crime or contains evidence of criminal wrongdoing—just as they are required to procure a warrant to search a vehicle whose owner is detained in lawful custody.


1/ United States v. Garcia-Aleman, 2010 U.S. Dist. LEXIS 65333 (E.D. Tex. June 9, 2010).

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization