Warrantless Cellphone Search Upheld on Appeal

     NORFOLK, Va. (CN) – A man accused of dealing marijuana cannot suppress incriminating text messages recovered by police during a warrantless search of his cell phone, a Virginia appeals court ruled.
     Virginia Beach narcotics detectives say they were staking out a drug delivery at an apartment complex on Oct. 2, 2013, when an individual arrived carrying a suspicious green package.
     After the man entered one of the apartments, a narcotics detective walked up and knocked on the door. When the tenant answered, the detective smelled marijuana and saw pot-smoking paraphernalia.
     In light of the detective’s observations, police detained Geoffrey Narcisco Rivera and the two other men who were present in the apartment at the time. They then intended to wait for a warrant to search the apartment; however, the tenant voluntarily consented to a search of the premises, and the officers found the suspicious green package, which was filled with marijuana.
     With that, the officers began interviewing each of the detainees separately.
     According to court documents, Detective Daniel Fogarty confiscated Rivera’s cell phone prior to their interview, during which time Rivera admitted buying eight ounces of marijuana which he planned to resell.
     As they spoke, Fogarty allegedly found several text messages on Rivera’s cell phone which referenced drug prices and sales.
     “When confronted with these text messages, Rivera made additional incriminating statements regarding marijuana transactions,” Judge Theresa Chafin wrote for a three-judge panel.
     Although Fogarty never obtained a warrant to search his phone, Rivera was charged with possession with intent to distribute. During his April trial, Rivera alleged the search was unconstitutional, and as such the evidence against him should be suppressed.
     In the meantime, the U.S. Supreme Court decided Riley v. California, in which the Justices held that police must obtain a warrant before searching a cell phone seized during arrest.
     Prior to Riley, cell phone searches were subject to the same scrutiny as United States v. Robinson, a Supreme Court case which dates back to 1973, and allowed police to search inside an arrestee’s cigarette pack.
     Chafin noted that “cell phones ‘differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.'”
     Nevertheless, she and her colleagues found, “the police officers were using the best practices in place at the time.”
     “Under these circumstances, we conclude that an officer could have objectively believed that the search of Rivera’s cell phone incident to his arrest was authorized by sufficient precedent,” Chafin said.
     Rivera is represented by attorney Afshin Farashahi who was in court when Courthouse News telephoned to request an interview.

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