US v. Flores-Lopez (3/3)
by
(con't.)
Conclusion
Understandably, the law is evolving along with the technology.
There is going to be a point in time,
however, when society will have to
determine whether the cell phone,
per se, is an extension of the
individual, and there- fore deserving of the same Fourth Amendment
protection as U.S. citizens enjoy in
their use of a traditional land- line. Until the law honors the inextricable
tie between individuals and their cell phones, there will likely never be
synergy across jurisdictions relating
to the lawful search of a cell
phone — whether incident to arrest or otherwise.
Notes
1. United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012).
2. See 21 U.S.C. §§ 841(a)(1); 18 U.S.C. § 924(c)(1).
3. United States v. Flores-Lopez, 2012 U.S. App. LEXIS 4078,
18-20 (7th Cir. Ind. Feb. 29, 2012).
4. United States v. Concepcion, 942 F.2d 1170 (7th Cir.
1991).
5. See 21 U.S.C. § 841.
6. United States v. Concepcion, 942 F.2d at 1172-73 (7th
Cir. 1991).
7. Arizona v. Hicks,
480 U.S. 321, 324 (1987).
8. See Center for
Disease Control and Prevention, Wireless Substitution: Early Release of
Estimates From the National Health Interview Survey, July-December 2009 (avail- able at http://www.cdc.gov/nchs/data/
nhis/earlyrelease/wireless201005.htm).
9. See CTIA, The
Wireless Association®, Wireless Quick Facts: Mid-Year Figures (avail- able
at http://www.ctia.org/advocacy/
research/index.cfm/aid/10323) (the following text is contained in the footnote
to the 31.6 percent figure above on
the CTIA website: “Midyear 2006 wireless-only data
from Early Release of Estimates from the National Health Interview Survey,
July-December 2009. National Center for Health
Statistics, May 2010. Figure for June
2011 is from Early Release of Estimates from the National
Health Interview Survey, January-June 2011. National Center for Health
Statistics, December 2011”).
10. See Katz v. United States, 389 U.S. 347, 361 (1967).
11. City of Ontario v. Quon, 130 S. Ct. 2619, 2630 (2010).
12. See State v. Clampitt, 2011 Mo. App. LEXIS 1741 (Mo. Ct.
App. 2012) citing United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007)
(concluding defendant had a reasonable expectation of privacy in the call
record and text messages on his cell
phone because he had a possessory interest in the phone
and took “normal precautions to maintain his privacy in the phone”);
United States v. Davis, 787
F. Supp. 2d 1165, 1170 (D. Or. 2011) (finding“[a] person has
a reasonable expectation of privacy in his or her personal cell phone,
including call records and text messages”); United States v. Gomez, 807 F.
Supp. 2d 1134 (S.D. Fla. 2011) (defendant had a reasonable expectation of
privacy in his cell phone because “the weight of authority agrees that
accessing a cell phone’s call log or text message folder is considered a ‘search’
for Fourth Amendment purposes”); United States v. Quintana, 594 F. Supp. 2d
1291, 1299 (M.D. Fla. 2009) (“a search war- rant is required to search the
contents of a cell phone unless an
exception to the
warrant cell phone users have “a reasonable and justifiable expectation
of a higher level of privacy in the information
[cell phones] contain” because of their
multi-functional uses and ability to store large amounts of private data, including text messages).
13. Commonwealth v. Pitt, No. 2010-0061 (Mass. Superior Court
- Norfolk County Feb. 23, 2012); available at
http://www.socialaw. com/slip.htm?cid=21253 (last visited May 1, 2012).
14. See 18 U.S.C. §§ 2510-22 (Wiretap Statute); 18 U.S.C.
§§ 2701-12 (Electronic Communications Privacy
Act); 18 U.S.C. §§
2701-12 (Stored Communications Act); and 18 U.S.C. §§ 3121-27 (Pen/Trap
Statute).
15. See 18 U.S.C. §§ 2510-22 (Wiretap Statute); 18 U.S.C.
§§ 2701-12 (Electronic Communications Privacy
Act); 18 U.S.C. §§ 2701-12 (Stored Communications
Act).
16. United States v. Robinson, 414 U.S. 218 (1973).
17. United States v. Jones, 132 S. Ct. 945 (2012).
18. See http://www.cellebrite.com/
mobile-forensics-products/forensics-prod- ucts.html (the company’s website
under “About Us” states the following:
“Cellebrite’s UFED products provide cutting-edge solutions for
physical, logical and
file system extraction for
thousands of mobile phones, capabilities for the world’s most popular plat-
forms — iPhone and Android. Our dedicated R&D staff is constantly at work
to create new, innovative tools and solutions to meet daily requirement
exists”); State v. Smith, 124 Ohio St. 3d 163, 920 N.E.2d 949, 956 (2009)
(finding smartphones and GPS devices, with ground-breaking physical
extraction & decoding challenges and
anticipate new ones
that await investigators in the lab or in the field.”
19. See Katz v. United States, 389 U.S. 347, 361 (1967).