Can an leo search cell phone without consent and no crime committed?

[leeiswho2b]

What is the name of your state (only U.S. law)? West Virginia


I had left my cell phone at the checkout in a grocery store. An off duty police officer picked it up and went through my phone, including my text messages. There could be some incriminating messages on the phone. He called an on duty officer from the same department. I went back to the store to get my phone as I realized I had left it. I called it several times on my way and there was no answer. I come out of the store and an officer approached me and asked if I had lost a phone. I replied yes. He said he had it and that it had evidence on it of a drug crime. He told me they were confiscating the phone and starting an investigation, but if I wanted to claim the phone at that moment that I would be arrested. He wants me to come into the station on his next duty day (Friday). He asked for my identification information. He told me if I don't show up, that he would get search warrants for my residence and any other residence of the senders of the texts.

Are they allowed to go through my cell phone including texts???? And can I be charged with a crime due to this? -

 

[sandyclaus]

What is the name of your state (only U.S. law)? West Virginia


I had left my cell phone at the checkout in a grocery store. An off duty police officer picked it up and went through my phone, including my text messages. There could be some incriminating messages on the phone. He called an on duty officer from the same department. I went back to the store to get my phone as I realized I had left it. I called it several times on my way and there was no answer. I come out of the store and an officer approached me and asked if I had lost a phone. I replied yes. He said he had it and that it had evidence on it of a drug crime. He told me they were confiscating the phone and starting an investigation, but if I wanted to claim the phone at that moment that I would be arrested. He wants me to come into the station on his next duty day (Friday). He asked for my identification information. He told me if I don't show up, that he would get search warrants for my residence and any other residence of the senders of the texts.

Are they allowed to go through my cell phone including texts???? And can I be charged with a crime due to this? -

I suspect that they probably searched through the cell and texts to figure out who the phone belong to, so that it could be returned to you. That would be a permissible reason to go through your phone data.

It just so happens that the information you left on the phone not only identified you, but implicated you in a criminal activity. I'm pretty sure you can be arrested and charged with a crime as a result. (You know that NORMAL drug dealers speak in code when they are putting their business out in the open, so as not to attract unwanted attention to their illegal activities - DUH.)

If you didn't want other people knowing you private business, and especially about your criminal activity, you should have locked the phone prior to leaving it behind where others could easily access it.

 

[leeiswho2b]

I suspect that they probably searched through the cell and texts to figure out who the phone belong to, so that it could be returned to you. That would be a permissible reason to go through your phone data.

It just so happens that the information you left on the phone not only identified you, but implicated you in a criminal activity. I'm pretty sure you can be arrested and charged with a crime as a result. (You know that NORMAL drug dealers speak in code when they are putting their business out in the open, so as not to attract unwanted attention to their illegal activities - DUH.)

If you didn't want other people knowing you private business, and especially about your criminal activity, you should have locked the phone prior to leaving it behind where others could easily access it.

I would believe that would be against my 4th Amendment rights? The phone has to be unlocked to be accessed. I would suspect that they would not have to go through my text messages to figure out the phone number. I am not a dealer, just user. I had called it while in their possession. I found them to be in the parking lot while going through it.

Also, that being the case, why would they just not arrest me on the spot?

 

[sandyclaus]

I would believe that would be against my 4th Amendment rights? The phone has to be unlocked to be accessed. I would suspect that they would not have to go through my text messages to figure out the phone number. I am not a dealer, just user. I had called it while in their possession. I found them to be in the parking lot while going through it.

Also, that being the case, why would they just not arrest me on the spot?

I tend to think that it might be a "plain sight" exception.

Sure, they wouldn't need to search your text messages for your phone number, but then again, they had your phone in their hands. They might have gone through the text messages to help identify a friend or someone else who might know your whereabouts so that they could return the phone to you. They didn't require a search warrant to do that, because you weren't a suspect in a crime.

In going through those messages, however, they discovered your criminal activity in the words of those text messages. They weren't looking for a crime or evidence of criminal activity, but when they found it during their innocent search to locate you, that evidence then became available through the "plain sight" exception. At least, that's what I'm thinking.

Why didn't they arrest you on sight? I'm not entirely sure. Perhaps they weren't 100% sure that you were the bonafide owner of the phone. Other than that, I have no idea.

I'm just speculating here. Probably best if we wait for one of our seniors who are more well-versed in such matters to come in and comment here. That would be CdwJava, a police officer himself, or Stevef, who I believe is about to take the bar. Let's have them chime in and give their opinion.

 

[Mass_Shyster]

This may not be a violation of your fourth amendment rights.

A quick search found State v. Kealey, 907 P. 2d 319 - Wash: Court of Appeals, 2nd Div. 1995 http://scholar.google.com/scholar_case?case=8936522716735086612 where the Washington appeals court found that someone who mislays property has a reasonable expectation of privacy in the item (a purse) and its contents, however the police were justified in searching it for identification of its owner. Here, the police can claim they were hoping to find a text message saying "Come to my house at 123 Mockingbird Lane", or something similar to locate the owner of the phone, and that the incriminating messages were therefor in plain view.

I don't know if WV subscribes to this or not. I'll poke around and see.

Either way, you need a lawyer. You should also go to youtube and find the video (45 minutes long , sometimes in two parts) titles "Never talk to the police".

From what you've written, the police know that you lost a phone, and the police have found a phone from a purported drug user. They had not, as of the time you spoke with them, determined that you were actually the owner of the phone, or that you sent any of those messages. That may be why you were not immediately arrested. It's also questionable whether your conversations regarding drug transactions are sufficient to convict you of possession and/or intent to distribute.

I suspect the police will try to get the identities of those you were in contact with and try to get you to cooperate in a controlled buy.

 

[sandyclaus]

You rock, Steve. That's just what I was hoping for.

 

[swalsh411]

Forget the phone. You're never getting it back. You must absolutely never admit that the phone is yours. Don't meet with the police, don't talk to the police. All you tell them is that you will not be answering any questions without an attorney. If they have enough evidence they will arrest you, at which point you say the same thing. They may be able to show the phone is linked to an account in your name but that doesn't prove you sent those text messages.

 

[HighwayMan]

Do you know how many cell phones people lose? Especially where I work...

We routinely look through the phone as a first step in trying to identify the owner so it can be returned. This can include looking through the contacts, text messages, emails, etc.

It's just like with, say, a purse. Or a wallet. If one of those items is lost and turned in or found by us we have every right to look through it for identification. If we happen to find contraband, and it HAS happened, then the owner will get charged.

I don't believe there would be any requirement for the police to answer your phone if it rang while they were in the middle of looking through it.

 

[leeiswho2b]

Do you know how many cell phones people lose? Especially where I work...

We routinely look through the phone as a first step in trying to identify the owner so it can be returned. This can include looking through the contacts, text messages, emails, etc.

It's just like with, say, a purse. Or a wallet. If one of those items is lost and turned in or found by us we have every right to look through it for identification. If we happen to find contraband, and it HAS happened, then the owner will get charged.

I don't believe there would be any requirement for the police to answer your phone if it rang while they were in the middle of looking through it.

That being said, all it was was words on there. They did not catch me with any drugs in my possession. They did not search my person or my vehicle. They did not arrest me. I did tell the officer that it was my phone. He told me if I wanted to go ahead and claim it at that time I would be arrested. I declined of course. He asked me about the names of the senders of the texts. I responded that it was friends/aquaintances, nothing more, nothing less. He then told me I need to come and talk to him at his office or my residence would be searched and an investigation started. As far as searching my place of residence, there would be nothing incriminating found. I did not hide or dispose of anything, I have no illicit or illegal drugs in my home. If they are going to do a search, why would they tell me beforehand? Is it illegal to try to locate an item? Basically I am asking if he is just trying to get me to come in and incriminate myself and/or give information on others? Are they just hoping to scare me to get info?!?!? Again, I have not been arrested or charged at this point. I do not sell drugs.

My plans are not to try to reclaim the phone. I don't intend on going in for questioning. Would this be my best course of action?

BTW, thank everyone for the responses so far! I am trying to be informed of what my rights are, and what not to do to make the situation worse!!!!

 

[CdwJava]

Apparently they have found evidence that implicates you as a party to illicit drug sales. Any further conversation would be to try and tie you to these crimes.

As others have advised, you might want to choose to keep your moth shut at this point. If they do come and arrest you (and with ONLY texts or emails, they will not have enough) then you invoke your 5th Amendment rights and ask for an attorney.

You have also been given an opportunity here to change your ways and avoid future criminal activity. Take it as a wakeup call!

 

[HighwayMan]

While they may not be able to arrest you simply based upon the texts, this can be the start of an investigation and the basis for search warrants being issued.

 

[CavemanLawyer]

If a phone is left long enough it can be deemed legally abandoned at which point anyone can look through it as long as they like for whatever they like. It doesn't sound like your phone was abandoned though.

As others have stated it would be permissible for law enforcement or a lay person to go into the phone to try to find indentifying information, but once the officer saw incriminating evidence he is required to stop the search and go get a search warrant to continue viewing the contents of the phone. He can't go searching through your texts about drug usage under the guise that he's trying to find the owner of the phone to return it. That may be why he initially searched but the scope of that search clearly has broadened to a criminal investigation which requires a warrant.

A phone is treated like any other container. If it is on your person when you are arrested the officer is allowed to search it almost without limit so long as they seize it immediately upon arrest. If the phone, however, is left out somewhere but not apparently abandoned, then they must develop probable cause and get a warrant to conduct a criminal investigative search of the phone. If the officer gathers that probable cause from browsing the phone trying to find the owner, that is fine.... but they can't get around the warrant requirement to continue the search.

There is no way to know specifically what the officer is referencing when talking about incriminating texts or how he would describe how he discovered those texts. Its impossible to say for sure but to me this sounds like a bad search. It also sounds like the texts are simply probable cause (at most) to investigate you further, not to arrest you at this point.