parties asserted that Ma owned the pager, and that he had lent it to Chan. In accordance with this version of the facts, defendant Chan argued that he had an interest in the pager as a result of it being lent to him for his use. Now, the DEA has released further documents indicating that the pager is registered to a person with the same last name as defendant Chan and with an illegible three letter first name beginning with an "S," which the DEA reads as "Sun." In the alternative to the lending theory, defendant Chan argues that if the illegible first name is actually "Sam," then Chan has a clear ownership interest.
The Court finds that the pager's ownership is not dispositive of Chan's standing to bring the motion to suppress. Regardless of whether the pager belonged to Ma or "Sun," there has been no showing that the pager was not legitimately obtained. Chan presumably maintained a subjective expectation that a borrowed item kept on his person would be free from governmental invasion. Furthermore, it is "reasonable" that one would have expectations of privacy in an item carried on one's person. Accordingly, Chan has standing to bring this motion as long as the expectation of privacy in a pager is one which society deems "reasonable."
3. Expectation of Privacy in a Pager
A warrant may be required to search the contents of a container when its owner's expectation of privacy relates to the contents of that container, rather than to the container itself. United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 2483, 53 L. Ed. 2d 538 (1977). Similarly, an officer's authority to possess a package is distinct from his authority to examine its contents. Walter v. United States, 447 U.S. 649, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980)(Court found reasonable expectation of privacy in contents of film carton). See also United States v. David, 756 F. Supp. 1385 (D. Nev. 1991) (defendant's computer memo book entitled to same Fourth Amendment protection as any other closed container).
The expectation of privacy in a pager, while analogous to other closed containers, has apparently never been addressed by the Ninth Circuit. In the only federal appellate case dealing with this subject, the Sixth Circuit found that the transmitter of a number to an electronic pager had no expectation of privacy when the number was subsequently seized from the pager. United States v. Meriwether, 917 F.2d 955 (6th Cir. 1990). The context in which the issue arose in Meriwether, however, differs significantly from the case at hand. There, a government agent seized a pager from a suspected drug dealer pursuant to a warrant which authorized the agent to search for and seize "telephone numbers of customers, suppliers, and couriers." The pager was seized in the "on" position, and the agents subsequently recorded the next forty telephone numbers received by the pager. The agents randomly chose the defendant's number from among the forty, and arranged a drug deal which led to the defendant's arrest.
The Sixth Circuit rejected the defendant's argument that he had a reasonable expectation of privacy when he transmitted the number to the pager. The court reasoned that when a person sends a message to a pager, he or she runs the risk that the message will be received by whomever is in possession of the pager. The expectation of privacy is less than when making a phone call because the transmitter has no control over, or knowledge of, who is receiving the message. Additionally, the court found that the seizure was within the scope of the warrant because it considered the pager analogous to a personal telephone book.
The Court declines to apply the reasoning of Meriwether to this case. The instant case, unlike Meriwether, deals with the privacy rights of the person in possession of the pager. In contrast to the transmitter of a message to a pager, the possessor of the pager has control over the electronically stored information. The expectation of privacy in an electronic repository for personal data is therefore analogous to that in a personal address book or other repository for such information.
United States v. Nelson Blas, 1990 U.S. Dist. Lexis 19961 (E.D. Wis. 1990), appears to be the only federal case which addresses the privacy rights of a person in possession of a pager. In that case, a government agent obtained numbers from a pager which the defendant allowed the agent to "look at." The defendant claimed that his consent to "look at" the pager permitted the agent only to look at the device, not activate it. The court agreed, reasoning that:
an individual has the same expectation of privacy in a pager, computer or other electronic data storage and retrieval device as in a closed container, and granting consent to "look at" the container is not a grant of consent to look into the contents of the container. The expectation of privacy in the contents of a container is different from the individual's expectation of privacy in the outward appearance of the container. Likewise, the expectation of privacy in the contents of a pager is different from the individual's expectation of privacy in the outward appearance of the pager.
Blas, at *56. The court concluded that the telephone numbers obtained from the pager should be suppressed because the defendant's consent did not extend to the contents of the pager.
The Court finds that Chan's expectation of privacy in the seized pager is analogous to that of the defendant in Blas. While the instant case does not revolve around a consent issue, the Court concurs with the reasoning in Blas and finds that Chan had a reasonable expectation of privacy in the contents of the pager's memory.
B. The Effect of a Search Incident to Arrest
Although Chan had a protected privacy interest in the contents of the pager's memory, it is irrelevant in this case because the pager was searched incident to Chan's arrest. When making a lawful arrest, police may conduct a warrantless search of the area "within the arrestee's immediate control, that is, 'the area from within which he might gain possession of a weapon or destructible evidence.'" United States v. Turner, 926 F.2d 883, 887 (9th Cir. 1991) (quoting Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685 (1969)). Such a search must be conducted at "about the same time as the arrest." United States v. Andersson, 813 F.2d 1450, 1456 (9th Cir. 1987). An officer may also search the contents of a container found on or near the arrestee in a search incident to arrest. New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). As stated in Belton:
Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have.