Cell Phones in Plain View Properly Seized as Instrumentalities of Drug Offenses

US v. Davis: Investigators believed Hough was trafficking in firearms and had him under surveillance when he went to a local gun store and purchased three pistols, having provided an “inaccurate address,” driven a rental car to the store, and paying in cash. They stopped Hough’s car, in which Darby was a passenger (and a felon), from which they recovered “two ripped plastic baggies” they believed were consistent with drug distribution. Hough admitted to his gun trafficking and said that some of the guns were located in Darby’s home, into which Hough was soon moving. Officers obtained a search warrant for the home.

Executing the warrant, officers found Davis at the home, who initially tried to run from them. While detained during the search, Davis was seen trying to dispose of drugs into an HVAC vent on the floor. He was searched, with officers recovering a small amount of drugs and some cash. In a bedroom that appeared to be Davis’, officers found a shotgun, more drugs, and cash. Three cell phones were seized from the home, one of which belonged to Davis. Davis was eventually charged with conspiracy, possessing with intent, and firearm offenses. He unsuccessfully moved to suppress evidence found during the search and entered a conditional guilty plea to one of the drug charges.

On appeal, the Fourth Circuit affirmed the denial of Davis’ motion to suppress. After concluding, generally, that there was probable cause to believe that there was evidence of a crime present in the home, the court sidestepped the particular issue of whether there was probable cause necessary to search for and seized drugs, instead holding that the seized drugs were either in plain view or seized pursuant to Davis’ arrest. As to Davis’ cell phone, the court rejected the Government’s argument that the phone was properly seized pursuant to his arrest, noting that the record only showed that the phone was “recovered from the residence,” but not specifically where. Instead, the court held that the seizure of the phone was proper under the plain view doctrine as “its incriminating character was immediately apparent,” given the evidence of drug trafficking that was found on Davis himself and in his bedroom. The court pointed out that “we do not hold that cell phones in plain view may always be seized as instrumentalities of a crime,” noting that the “nature of the alleged crime and the totality of the evidence are critical considerations.” A cell phone is an “everyday object” without a primary criminal purpose, so “for a cell phone to be seized in plain view, the additional evidence or indicators of criminality have significant work to do to establish probable cause.” The court also made clear that it was not holding that the lawful plain view seizure of the phone authorized a search of its contents (for which investigators had gotten a warrant).