Privacy Law

Cops Can Obtain Number from Cellphone Without Warrant, Posner Opinion Says

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A Chicago-based appeals court has ruled that police may search a cellphone for its number without obtaining a warrant.

The number on the phone, seized during the defendant’s arrest at a drug bust, was used to subpoena the owner’s call history, revealing conversations with co-conspirators, according to the Wall Street Journal Law Blog and Reuters.

The opinion (PDF) by Judge Richard Posner of the 7th U.S. Circuit Court of Appeals compared the cellphone to a diary. “If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cellphone to learn its number,” Posner wrote. “If allowed to leaf through a pocket address book, as they are … , they should be entitled to read the address book in a cellphone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cellphone.”

Writing at the Volokh Conspiracy, George Washington University law professor Orin Kerr says Posner “seems to have some sort of graduated scale in mind, in which minimally intrusive searches of phones are okay as a routine matter incident to arrest but more extensive searches require more justification or maybe a warrant.”

He says the “confusing opinion” helps set up eventual Supreme Court review by “adding a new approach to the mix.”

The case is USA v. Flores-Lopez. Hat tip to How Appealing.

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