Court rules police need warrant or consent to search cell phones

Police cannot search the cell phone of someone they have not arrested without either a warrant or the owner’s consent, the Arizona Court of Appeals ruled Tuesday.

The judges rejected arguments that Pima County sheriff’s deputies had a right to look at the phone as part of their investigation of whether Feleciano Ontiveros-Loya had threatened a woman who said he had a weapon.

What they turned up on the phone was a picture of a silver handgun. And since police never found an actual gun, that evidence was used to convict Ontiveros-Loya on charges of illegal possession of a weapon and sentence him to eight years in prison because, as a convicted felon, he was not allowed to have one.

But appellate Judge Michael Miller, writing for the unanimous court, said deputies had no legal reason to look at the phone.

Miller acknowledged that deputies did eventually obtain a warrant. But he said the evidence suggests the basis for issuing that warrant were the pictures on the phone – the pictures to which they had no right to access – making the warrant legally void.

Ontiveros-Loya is not off the hook yet, though. The appellate court sent the case back to Pima County Superior Court Judge Deborah Bernini to consider arguments by prosecutors that he effectively consented to the search of the phone, a contention his attorney disputes.

The judges, however, made clear they were not buying the other arguments about why deputies could search the phone.

Miller said there are reasons police can take possession of a cell phone, such as preventing suspects from erasing incriminating information.

But he pointed out that was not a threat here, with Ontiveros-Loya stuck in the back of a patrol car and the phone found in his motel room.

Even if that were not the case, Miller said, the most police could do is take possession of the phone and, if merited, obtain a search warrant to check its contents – a warrant they could get only by a showing of probable cause to a judge.

Deputies denied that they used the photos to eventually get the warrant. But Miller noted that prosecutors never provided the affidavits used to get the warrant, affidavits which would lay out the probable cause.

“There was no testimony that would allow the court to conclude the officers could have obtained the warrant to search the cell phone without the photographs found in the initial search,” Miller wrote. And he said there is no evidence that police would have “inevitably” discovered the photos.

The appellate court was no more impressed with prosecutors’ arguments that when Ontiveros-Loya agreed to let deputies search his motel room that necessarily included the right to search his phone. Miller said there was “no evidence” to support that contention.