US v. Camou, No. 12-50598 (12-11-14)(Pregerson with Fisher and Gwinnett, D.J.).

 A search incident to arrest, ends with the arrest. It can only occur when (1) the search is of the person or immediate vicinity; and (2) be spatially and temporarily tied to the arrest. In short, person or close to the person, close in time and space. Here, the search of a cell phone, where child porn was found, occurred after the arrest had ended. The cell phone evidence must be suppressed.

The defendant was stopped at a checkpoint. A search of the vehicle found an illegal alien being smuggled. The defendant and his girlfriend were arrested. They were separated. They were taken to separate rooms. More intervening acts occurred. The phone was searched for phone numbers....and closed. The phone was opened and the video was searched....and closed. Photos were then examined, and child porn found. An hour and twenty minutes had gone by. This length of time, span of acts, and different places signaled the end of the arrest. The phone, where numbers if the organizer of the smuggling were listed, was not at that point incident to arrest.

The 9th also found that there was no exigent circumstances. The police had the phone. There was no immediate need or emergency. A warrant should have been requested. Likewise, the discovery was not inevitable.

The 9th suppressed.

Congrats to Jim Fife, Deputy Federal Defender for the Federal Defenders of San Diego for this notable win.