Border Patrol SEARCH cell phone WITHOUT a WARRANT by relying on search incident to arrest exception.

Search Incident to Arrest

A search incident to a lawful arrest is an exception to the general rule that warrantless searches violate the Fourth Amendment. The exception allows a police officer making a lawful arrest to conduct a search of the area within the arrestee’s “immediate control,” that is, “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (internal quotation marks omitted), abrogated on other grounds by Arizona v. Gant, 556 U.S. 332, 344, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).

The Exigency Exception

Under the exigency exception, officers may make a warrantless search if: (1) they have probable cause to believe that the item or place to be searched contains evidence of a crime, and (2) they are facing exigent circumstances that require immediate police action. See Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298–301, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (upholding a warrantless search where “the exigencies of the situation made that course imperative”). We have defined exigent circumstances as “those circumstances that would cause a reasonable person to believe that entry [or search] … was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.1984) (en banc), overruled on other grounds by Estate of Merchant v. Comm’r, 947 F.2d 1390, 1392–93 (9th Cir.1991). To be reasonable, a search under this exception must be limited in scope so that it is “strictly circumscribed by the exigencies which justify its initiation.” Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (internal quotation marks omitted); see also United States v. Reyes–Bosque, 596 F.3d 1017, 1029 (9th Cir.2010) ( “In order to prove that the exigent circumstances doctrine justified a warrantless search, the government must [also] show that … the search’s scope and manner were reasonable to meet the need.”).

The Vehicle Exception

Another exception to the Fourth Amendment’s warrant requirement is the vehicle exception. Carroll v. United States, 267 U.S. 132, 153–54, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Under the vehicle exception, officers may search a vehicle and any containers found therein without a warrant, so long as they have probable cause. California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) ; United States v. Ross, 456 U.S. 798, 821–22, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Unlike search incident to arrest, the vehicle exception is not rooted in arrest and the Chimel rationales of preventing arrestees from harming officers and destroying evidence. Instead, the vehicle exception is motivated by the supposedly lower expectation of privacy individuals have in their vehicles as well as the mobility of vehicles, which allows evidence contained within those vehicles to be easily concealed from the police. Carroll, 267 U.S. at 153, 45 S.Ct. 280 ; California v. Carney, 471 U.S. 386, 390–91, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).

Full case here: United States v. Camou, 773 F.3d 932 (9th Cir. 2014),

Anton Vialtsin, Esq.
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