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OR: Search of a cell phone that was clearly evidence of the crime was valid

By John Wesley Hall, Jr.

The search incident of defendant’s cell phone was valid on this limited record, partly because the issues asserted on appeal by the defendant were not presented to the trial court and the record was not developed. Aside from that, the record was replete with information that the cell phone was related to defendant’s crime, and that made the search incident valid on the record. State v. Nix, 2010 Ore. App. LEXIS 663 (June 23, 2010): Fourth, and finally, defendant, as respondent, advances an extended, and nuanced, argument that the search here would not be lawful under the Fourth Amendment as a search incident to arrest. That presentation proceeds from a discussion of myriad federal decisions--none of which was cited to the trial court--and ultimately urges that, given categorical constructs adopted by the federal courts and particular purported characteristics of cellular telephones, including with respect to data storage capacity, a warrantless search of an arrestee's cellular telephone cannot be deemed a lawful search incident under the Fourth Amendment...continue to full post

Full post as published by Fourth Amendment on June 26, 2010 (boomark / email).