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    Fifth Circuit Court of Appeals: Search of Mobile Phone Not Permitted Under “Terry” Stop

    The Court of Appeals for the Fifth Circuit has affirmed a lower court ruling (pdf) that an investigative stop of a vehicle (also called a Terry stop after the Terry v. Ohio case), did not permit a police officer to open the driver’s mobile phone and find the subscriber number associated with the phone. The Terry case held that police officers can stop an individual if the officer has a “reasonable suspicion” that the person has, is or will soon commit a crime. The officer may conduct a quick “frisk” of the individual — a pat-down protects the officer and ensures that there are no weapons.

    Terry concerned a pedestrian, but this ruling was later expanded to traffic stops, allowing a “temporary detention” of a individual if a police officer has a “reasonable suspicion” that the person has, is or will soon commit a crime. In Zavala, the government argued that the check of the mobile phone “was admissible because it was obtained incident to arrest [… and] the search of the cell phone was equivalent to a licence [sic] check.” An individual can be arrested based on “probable cause,” which is a higher standard than “reasonable suspicion,” and a “search incident to an arrest” is more intrusive and complete than a Terry stop and frisk.

    The Fifth Circuit rejected this argument. Judge DeMoss wrote:

    We agree with the district court’s legal conclusion that the initial stop of Zavala’s vehicle was an investigative stop based on a reasonable suspicion of drug trafficking activity, not probable cause. The search of Zavala’s cell phone was not the equivalent of a license check. Because [the Drug Enforcement Administration (DEA) agent] did not have consent or probable cause to arrest Zavala at the time of the search, the search was unconstitutional.

    Judge DeMoss held, “The Government’s analogy between searching a cell phone during an investigative stop and running a license check during a traffic stop is simply not apropos.” He said, “In the case of a traffic stop, a police officer must ensure that the driver does not have a warrant or a suspended license, and that the vehicle is registered and not reported stolen. These checks are routine and quickly performed.”

    However, “[u]nlike a driver’s license and vehicle registration, which are typically issued by a governmental entity, cell phones contain a wealth of private information, including emails, text messages, call histories, address books, and subscriber numbers. Zavala had a reasonable expectation of privacy regarding this information.” The judge said the “search of Zavala’s cell phone was ‘general rummaging in order to discover incriminating evidence.”

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