¶ 82. (dissenting). The issue in this case is whether a cell phone photo of the defendant holding a semi-automatic weapon, and other cell phone photos depicting firearms, should be suppressed as evidence. There is no dispute that the defendant had been adjudicated delinquent as a juvenile for a drug-related felony. There is also no dispute that the defendant unlawfully possessed a firearm after his felony adjudication. The question here is whether law enforcement obtained evidence of this crime in conformity with the Fourth Amendment. Because I have serious reservations about police procedure in obtaining the pivotal evidence, I respectfully dissent.
I
¶ 83. The facts are as follows. On Wednesday, December 6, 2006, a Milwaukee police detective and an FBI special agent were conducting surveillance of a house in the area of 21st and West Brown Streets in the City of Milwaukee. It was approximately 8 p.m. The law enforcement officers were investigating an armed robbery and, in that connection, they were monitoring a vehicle near the house. The suspect vehicle was a white Ford Escort. Although the house in question may have been the house occupied by the defendant's aunt, there *347is no evidence in the record that either the defendant or the defendant's aunt has ever been charged in connection with a robbery or with the receipt of stolen property from a robbery.
¶ 84. The white Ford Escort "left the location" of 21st and Brown Streets, driving south on 21st to Vine Street, then west on Vine to 24th Street, then south on 24th to Lisbon Avenue, then west on Lisbon to 27th Street, where it turned into a gas station on the northeast corner of 27th and Lisbon.
¶ 85. Detective John Belsha of the Milwaukee Police Department testified that the Ford Escort drove slowly by his vehicle on 21st Street, then quickly speeded up. The officers gave chase. The Ford consistently exceeded the speed limit, traveling as fast as 60 miles per hour on Lisbon Avenue, with the officers in hot pursuit. The record does not indicate whether the officers were in a marked squad car or flashed their overhead lights as they pursued the defendant's car.
¶ 86. At the gas station, the defendant "exited the driver's seat very quickly .... He had something in his hand," so that Detective Belsha drew his service weapon and ordered the defendant "to drop what was in his hand and get down on the ground."
¶ 87. The defendant dropped the object, which turned out to be a U.S. Cellular Audiovox cell phone. The cell phone was a "flip phone with a camera on the front. It [had] a clock on it, a little display with a clock on it."
¶ 88. Detective Belsha later testified that when the defendant dropped the phone, it was either open or flipped open when it hit the ground. The detective, who did not know defendant Carroll, handcuffed him, briefly examined his cell phone, then asked him to identify himself. The defendant gave his name but did *348not have identification with him. After the defendant gave his name, the officers ran "a routine wanted check" on him and "it came up with a suspended status for driver's license."
¶ 89. When Detective Belsha picked up the cell phone, he noticed on the display screen a picture of the defendant "smoking what's commonly referred to as a blunt, a marijuana cigarette."
¶ 90. The defendant was taken into custody and placed in the back of the police vehicle. Detective Belsha sat in the front seat of the vehicle and activated a photo gallery in the phone. At that point he observed pictures of illegal drugs, a large amount of currency, and firearms, including a picture of the defendant holding a semi-automatic weapon. He also encountered a picture of the defendant holding what appeared to be a gallon size baggie of marijuana in his teeth.
¶ 91. While Detective Belsha was in his vehicle, the defendant's cell phone rang more than once. On one occasion, the detective answered the phone and heard what he interpreted as a request to buy cocaine. The caller asked for "4 of those things; 4 and a split."
II
¶ 92. A suppression hearing on the firearm photos was held in two sessions, on March 9 and March 23, 2007, before Milwaukee County Circuit Judge Charles F. Kahn, Jr. At the second session, Judge Kahn examined the defendant's cell phone, which had been retrieved from the police department property room, and he described the phone for the record. He then stated the issue as whether Detective Belsha had the legal authority, after viewing the cell phone display picture of *349the defendant smoking a blunt, "to go further and look at the other pictures electronically saved in the cell phone itself."
¶ 93. The State argued that "a further search of the phone was justified incident to the arrest of the defendant." Carroll's arrest, it said, was based not only on driving (e.g., speeding and suspended license) but also on "the observations of the officer in terms of the contents of the phone."
¶ 94. The defendant asserted that Detective Belsha's activation of the cell phone menu to expose pictures in the photo gallery was "a search for evidence, not an inventory search," and thus required a search warrant.
¶ 95. Judge Kahn concluded that the cell phone posed no danger to officers and that "because there was no arrest made until after the search of the cell phone, the private information on the cell phone... which formed the basis for [a subsequent] search warrant [for the phone] was obtained illegally" and could not properly be considered by the court commissioner reviewing the affidavit for the search warrant.
¶ 96. It should be noted that the search warrant and the affidavit supporting it were part of the record at the suppression hearing. The affidavit makes reference to Detective Belsha's interception of the phone call after reviewing the pictures in the photo gallery. There was, however, no testimony about this interception at the suppression hearing, and the State did not refer to the interception in its argument at the suppression hearing.
¶ 97. Judge Kahn identified the nub of this dispute when he asked whether Detective Belsha could rely on a single cell phone photo of the defendant smoking a blunt, and the other known circumstances at *350the time, as justification to search the photo gallery within the phone without obtaining a warrant. A related question is whether the single cell phone photo of the 19-year-old defendant smoking a blunt, together with other known circumstances, was sufficient to give the detective authority to begin answering the defendant's cell phone calls.
¶ 98. In short, did the totality of the evidence available at the gas station give the police probable cause to search the defendant's cell phone for photos and intercept his calls without first obtaining a search warrant?
¶ 99. The majority concludes that searching the cell phone photo gallery on this evidence was unlawful, and I agree. But the majority then goes on to conclude that the single display photo of the defendant smoking a blunt was enough to permit police interception of defendant's calls to avoid the destruction of drug evidence. This analysis was not argued to the trial court, nor considered by the trial court. It is inconsistent with this court's ruling on the photo gallery and, in my view, at odds with the privacy of citizens.
Ill
¶ 100. The defendant had a U.S. Cellular Audiovox cell phone. When this phone is flipped open, it reveals a liquid crystal display (LCD) screen at the top and a keypad to activate the multiple functions of the phone at the bottom. Normally, a flip-type phone is not open unless it is being used. Consequently, the photo of the defendant smoking a blunt would normally not be in plain view, as it was to Detective Belsha. The defendant makes no claim that the detective flipped the phone open to see the photo on the LCD screen.
*351¶ 101. At the same time, the defendant's photo on the LCD screen — a photo of critical significance in the majority opinion — is never mentioned in the detective's six-page police report. It is not mentioned in the affidavit supporting the application for a search warrant. It is not mentioned in the criminal complaint. And it is not mentioned in the transcript of the preliminary hearing. There is no reference to the blunt photo in the record until the State filed its response to the motion to suppress. I find it curious that the majority attributes such significance to a cell phone photo that this court has never seen and that the key officer in this case did not highlight until three months after the defendant's arrest.
¶ 102. At the suppression hearing, the State took the position that the officer could examine the contents of the cell phone — i.e., conduct a search of the phone— incident to the defendant's arrest. The circuit court found, however, that while the defendant was in custody when he was placed in the back of the police car, he was not under arrest until after the officer's search of the phone. In any event, the majority concludes that activating the photo menu was not lawful when the activation was based principally on the blunt photo.
IV
¶ 103. Detective Belsha's affidavit in support of a search warrant for the cell phone reads in part:
[A]n examination of said phone incident to the arrest of Jermichael Carroll revealed numerous photographs, several of the photos including firearms. Jermichael Carroll is in possession of a firearm in one of the photographs, with a separate photo of only the same firearm in another photo. Your affiant states that based *352upon your affiant[']s training and experience, and the examination of the photo, it appears to your affiant to be an actual semi-automatic firearm. Additionally, there are photos of Carroll with what appears to be a quantity of marijuana, photos of what appears to be cocaine, as well as a photo of drugs, money, and a revolver.
¶ 104. According to the majority opinion, none of these statements should have been included in the affidavit. The only statement about photo evidence that the detective was entitled to cite in the affidavit was that he observed a photo of Jermichael Carroll smoking a marijuana cigarette, in plain view on the display screen of Carroll's cell phone. But such a statement was not included in the affidavit.
¶ 105. Of course, Detective Belsha did offer additional information in the affidavit. He said that while he possessed the defendant's cell phone,
said phone continued to ring; your affiant answered one of the calls made to said phone on December 6, 2006 and pretended to be Jermichael Carroll. Your affiant states that the caller asked your affiant for "4 of those things; 4 and a split," which based upon your affiant's training and experience in investigations related to the distribution of controlled substances is a slang, requesting the purchase of a 4 1h ounce quantity of cocaine, consistent with drug trafficking.
¶ 106. This evidence is quite compelling. If an affidavit for a warrant to search a person's cell phone were to assert that the person has been adjudicated delinquent for possession with intent to deliver cocaine (a felony), that the person's cell phone features a picture of the person smoking a marijuana cigarette, and that the affiant intercepted a call to the person's cell phone from a probable cocaine purchaser, the affidavit would *353contain probable cause to search the person's cell phone. The critical question is whether Detective Belsha was entitled to intercept the call to the defendant's cell phone and then use the resulting information in his affidavit.
¶ 107. It is quite clear from the testimony that Detective Belsha did not answer the defendant's phone and impersonate the defendant until after he had examined all the pictures inside the phone. The photos provided grounds to answer the defendant's phone, but the detective could not lawfully examine those photos without a warrant.
¶ 108. Thus, the question is whether Detective Belsha was entitled to intercept the defendant's phone call on only the following information:
(1) An unknown person turned up in the location of a house under surveillance in connection with a robbery.
(2) The person was speeding after he left the area of surveillance, possibly trying to evade a car that he may or may not have known was a police car.
(3) The person's license to drive was suspended.
(4) The person's cell phone showed a picture of him smoking a marijuana cigarette.
(5) Drug traffickers frequently take, or cause to have taken, photographs of themselves with illegal drugs and then personalize their cell phones with those pictures.
¶ 109. The syllogism that the majority appears to rely on is as follows:
(1) Drug traffickers frequently personalize their cell phones with pictures of themselves possessing illegal drugs.
(2) The defendant's cell phone shows him smoking a marijuana cigarette.
*354(3) Therefore, the defendant is probably a drug trafficker.
¶ 110. Then the majority adds that because the defendant is probably a drug trafficker, the police are entitled to intercept his telephone calls without a warrant so that they will not lose evidence of drug dealing.
¶ 111. To my mind, this analysis does not hold up or justify a search by warrantless interception of the defendant's phone calls. The facts here do not establish exigent circumstances permitting the police to dispense with a warrant.
¶ 112. The officers did not know who Carroll was and did not know of his felony adjudication at the time Detective Belsha intercepted the call. Carroll did post a picture of himself smoking marijuana on his phone, but he could have been an occasional marijuana user instead of a drug trafficker. The internet features many pictures of marijuana that people can employ as "wallpaper" on their cell phone display screens. After this decision, will an impersonal picture of illegal drugs on a cell phone provide probable cause for a search of the phone without a warrant?
¶ 113. There is no evidence in the record that Carroll has been charged with any offense other than being a felon in possession of a firearm. Thus, the drug pictures did not lead to additional drug evidence or drug-related charges.
¶ 114. Law enforcement may have been able to obtain a search warrant without reliance on the photos in the photo gallery or reference to the intercepted telephone call. If not, they should not have been able to intercept the phone call without a warrant.
¶ 115. This case is different from United States v. Finley, 477 F.3d 250 (5th Cir. 2007). Finley was the driver of a drug seller's vehicle during a controlled drug *355buy. Id. at 253. The authorities had evidence that he was a drug user as well as a participant in an illegal drug transaction at the time they searched his cell phone without a warrant. Id. at 254-55. In United States v. De La Paz, 43 F. Supp. 2d 370 (S.D.N.Y. 1999), the defendant was arrested following a three-month investigation into alleged drug dealing activities. A federal agent answered the defendant's cell phone as he was being booked. These cases are different from this case, where the only evidence of Carroll's personal involvement with drugs at the time his call was intercepted was his cell phone photo smoking a blunt. Consequently, one does not have to disagree with either Finley or De La Paz to distinguish them from this case. I note that the Ohio Supreme Court recently took a restrictive view of warrantless cell phone searches. See State v. Smith, No. 2008-1781, 2009 WL 4826991 (Ohio, Dec. 15, 2009) (citing United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007)).
V
¶ 116. Detective Belsha's affidavit to support the search warrant is problematic for several reasons. First, it should not have contained discussion of the pictures in the photo gallery. Second, in my view, it should not have relied upon the intercepted phone call. Third, it did not refer to the blunt photo on the display screen. Fourth, the affidavit is very heavy in boilerplate paragraphs that have nothing to do with the search of a cell phone. Fifth, the affidavit seriously misleads the reader when it says: "A search of the Carroll [sic] revealed a cellular telephone." This passage immediately follows a discussion of the Carroll vehicle and mistakenly implies that the cell phone was taken from the Carroll vehicle. Sixth, the affidavit states: "Your affiant attaches and *356incorporates into this affidavit a criminal complaint dated May 22, 2006 in which the target. . . was observed to be involved in activity consistent with drug trafficking." The affidavit fails to acknowledge that this complaint was dismissed before the affidavit was filed and that the complaint involved guns, not "drug trafficking." The unspoken implication is that a person is acting "consistent with drug trafficking" if the person possesses a gun.
¶ 117. For all these reasons, the photos of the defendant with a firearm should be suppressed, or, at a minimum, this case should be remanded to the circuit court for a hearing to determine whether the information gathered from illegal searches and other misleading information in the affidavit improperly tainted the court commissioner's decision to issue the warrant. See Murray v. United States, 487 U.S. 533 (1988).
¶ 118. For the reasons stated, I respectfully dissent.