WV: Cell phone seized under SW for car needs no separate SW to search it

Having searched a car and seizing evidence under a search warrant, a separate search warrant is not required to search a cell phone that was properly seized as evidence of a crime under the warrant. State v. White, 2011 W. Va. LEXIS 4 (February 10, 2011): … Instead, the question that must be answered to resolve this issue is whether a separate search warrant is required to examine the contents of items seized in the execution of a valid search warrant. The United States Supreme Court touched on this issue in the case of United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). In Ross, the Supreme Court explained that [a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found. A warrant to open a footlocker to search for marihuana would also authorize the opening of packages found inside. A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search. When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand. 456 U.S. at 820-21, 102 S. Ct. at 2170-71, 72 L. Ed.2d 572 (footnotes omitted). This Court previously has indicated its approval of Ross, which was quoted in State v. Lacy, 196 W. Va. 104, 116, 468 S.E.2d 719, 731 (1996). Furthermore, it has been observed generally that an additional warrant is not required to examine seized objects. See 2 Wayne R. LaFave, Search and Seizure, § 4.10(e) at 771 (4th ed. 2004) (observing that "[p]erhaps because it is generally understood that a lawful seizure of apparent evidence of crime pursuant to a search warrant carries with it a right to test or otherwise examine the seized materials to ascertain or enhance their evidentiary value, this issue is rarely litigated" (footnote omitted)). Cf. Commonwealth v. Copenhefer, 526 Pa. 555, 562, 587 A.2d 1353, 1356 (1991) ("A paper tablet, seized pursuant to a valid search warrant, may be subjected to scientific and physical manipulation and analysis without a second search warrant. … The same would be true of a diary recorded in a private code. If we accepted appellant's argument, after seizing the diary pursuant to a valid search warrant, the state would be obligated to obtain a second warrant before it could attempt to read the diary by deciphering the code. Yet the diarist's obvious attempt to achieve secrecy does not create a legally protected expectation of privacy nor the need to obtain a warrant before subjecting legally seized physical evidence to scientific testing and analysis to make it divulge its secrets."), abrogated in part on other grounds by Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069 (2001); State v. Gregory, 158 Wash. 2d 759, 826, 147 P.3d 1201, 1236 (2006) (observing that "once a suspect's property is lawfully in the State's control, the State may perform forensic tests and use the resulting information to further unrelated criminal investigations, without violating the owner's Fourth Amendment rights (citing State v. Cheatam, 150 Wash. 2d 626, 638, 81 P.3d 830 (2003))). Accordingly, we now expressly hold that, when searching a vehicle pursuant to a valid search warrant, no additional search warrant is required to examine the contents of items that are properly seized in the execution of the warrant, including, but not limited to, cellular telephones. Applying this holding to the case at hand, we find the contents of the Motorola cellular telephone seized from Mr. Mahrous's yellow truck were properly examined by law enforcement officials. Therefore, the trial court did not err in denying Mr. White's motion to suppress evidence that was obtained as a result of that examination. [Note: Therefore, under this rationale, a computer would be subject to the search warrant if, and this is a big if, the probable cause extended to the computer. It might not. Here, the cell phone was clearly of evidentiary value. Without knowing more, a computer would not be.]

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1 Response to WV: Cell phone seized under SW for car needs no separate SW to search it

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