Cellphone Seizure Violated Fourth Amendment, But Error Was Harmless

US v. Horsley: Between 2016 and 2019, Horsley (and a pair of associates who eventually testified against him) was a drug “dealer and a mid-level distributor” in the Lynchburg, Virginia area. As part of the investigation of Horsley, police seized a pair of cell phones from his apartment at the time of his arrest and searched a Jaguar that allegedly belong to Horsley (in which was found cash and cellphones). Horsley unsuccessfully moved to suppress all that evidence and was convicted by a jury of conspiracy and possession with intent to distribute various controlled substances.

On appeal, the Fourth Circuit affirmed Horsley’s sentence. A primary contention from Horsley on appeal was that the cellphones seized at the time of his arrest, and specifically the one that contained evidence admitted at trial, was seized in violation of the Fourth Amendment. The court agreed, concluding that the seizure of that phone did not fall within the search incident to a lawful arrest doctrine. At the time of the seizure, Horsley was in handcuffs, on the other side of the bed from the table on which that phone rested, and was accompanied by numerous officers. Indeed, one agent testified that Horsley “could not have reached for the phones” because he was in handcuffs. The court rejected the Government’s reliance on its prior decision in Ferebee, which approved the seizure of a backpack following the defendant’s being placed in handcuffs. The court limited Ferebee, holding that it’s discussion of the search incident to a lawful arrest was dicta, as it had already held that the defendant there lacked standing to challenge the search in the first place. That said, the court concluded that the district court’s error in denying Horsley’s motion to suppress was harmless, given the strength of the uncontested evidence presented at trial.