PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4607
DAMIAN ANTONIO MURPHY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
Glen M. Williams, Senior District Judge.
(1:06-cr-00062-gmw)
Argued: October 27, 2008
Decided: January 15, 2009
Before KING, Circuit Judge, HAMILTON, Senior Circuit
Judge, and Martin K. REIDINGER, United States District
Judge for the Western District of North Carolina, sitting by
designation.
Affirmed by published opinion. Judge Reidinger wrote the
opinion, in which Judge King and Senior Judge Hamilton
joined.
COUNSEL
ARGUED: Richard Croutharmel, Raleigh, North Carolina,
for Appellant. Jennifer R. Bockhorst, OFFICE OF THE
2 UNITED STATES v. MURPHY
UNITED STATES ATTORNEY, Abingdon, Virginia, for
Appellee. ON BRIEF: John L. Brownlee, United States
Attorney, Roanoke, Virginia, for Appellee.
OPINION
REIDINGER, District Judge:
Damian Antonio Murphy appeals his conviction for con-
spiracy to possess with intent to distribute cocaine and hydro-
morphone, in violation of 21 U.S.C.A. §§ 846 and
841(b)(1)(C) (2000 & Supp. 2008), and for possession of
counterfeit currency, in violation of 18 U.S.C.A. § 472 (Supp.
2008). On appeal, Murphy contends that the district court
erred in denying his motion to suppress evidence of a cell
phone, $14,790 in U.S. currency, and counterfeit money
seized at the time of his arrest. We affirm.
I.
In the early morning hours of June 6, 2006, Virginia State
Trooper Danny Pruett was operating stationary radar along
Interstate 81 in Wythe County, Virginia, when he observed a
vehicle traveling northbound at a high rate of speed. Radar
confirmed that the vehicle was traveling 95 miles per hour.
After stopping the vehicle, Trooper Pruett asked the driver for
her license and registration. The driver, who was later identi-
fied as Marsha Massengill, advised him that she had left her
operator’s license at home. Massengill told Trooper Pruett
that her name was Debbie Arlene Sanchez, and she provided
a date of birth. Trooper Pruett observed that Massengill
appeared to be nervous and hesitant. The front seat passenger,
who was later identified as Damian Murphy, also claimed to
have left his license at home. He told Trooper Pruett that his
name was Corey Antonio Murphy and provided a date of
birth. The back seat passenger, later identified as James
UNITED STATES v. MURPHY 3
McCord, provided to Trooper Pruett an unusually thick Ala-
bama license bearing the name Clarence Todd Drain. The
occupants could not produce a registration for the vehicle, but
they did produce a rental agreement for the vehicle in the
name of Sabrina Callaway.
Trooper Pruett conducted a check through the National
Crime Information Center (NCIC) on the names and dates of
birth provided by the vehicle’s occupants. The NCIC check
revealed that there were no licenses or state identification
cards issued to any persons by those names. The check also
revealed that the license number appearing on the license of
"Clarence Todd Drain" was a legitimate number, but that it
had been issued to a female.
Having determined that no one in the vehicle had a valid
driver’s license, Trooper Pruett prepared to have the vehicle
towed. He also requested additional officer assistance to help
determine the identity of the vehicle’s occupants and to assist
him in conducting an inventory of the vehicle’s contents, as
required by Virginia State Police policy.
In speaking with Trooper Pruett, Massengill initially
referred to the front seat passenger as "Corey" but later told
Trooper Pruett that his name was "Damian." She referred to
McCord as "James" and "Jay." She also told Trooper Pruett
that she and Murphy were traveling to New York City to see
Murphy’s sick grandmother, and that McCord was just getting
a ride to New York.
Murphy spoke with a second officer on the scene, Trooper
Chapman. Murphy first identified himself to Trooper Chap-
man as "Corey Antonio Murphy" but later stated that his
name was "Corey Demetrius Murphy." He provided Trooper
Chapman with the names of individuals with whom he
claimed to work at a company called Colgate Steel who alleg-
edly could verify his identity. Murphy also gave Trooper
4 UNITED STATES v. MURPHY
Chapman his cell phone and showed him how to use it in
order to locate the number for his employer.
After conducting the NCIC check, Trooper Pruett arrested
McCord for providing a fictitious driver’s license. When told
that the license number that he had provided belonged to a
woman, McCord admitted that the license was fictitious, and
he provided a second false name, James Anthony McCoy.
McCord claimed ownership of a green duffle bag in the back-
seat of the vehicle. A search of this duffle bag incident to
McCord’s arrest revealed a fragment of a glass smoking pipe
containing burnt residue, a dagger-type weapon, four addi-
tional fake licenses, and a plastic baggie with an off-white
powdery substance consistent with the appearance of cocaine.1
Trooper Pruett arrested Massengill for reckless driving.
Trooper Pruett searched her purse incident to her arrest and
found a Jefferson County, Alabama inmate photo identifica-
tion card with her picture and a Social Security card, both
bearing the name "Marsha Arlene Massengill." Massengill
admitted that it was her true name, and she explained that she
had lied about her identity because she was wanted in Ala-
bama for forgery. Trooper Pruett confirmed this warrant
through NCIC.
Because Murphy had provided multiple names and his true
identity could not be verified, he was arrested for obstruction
of justice.
The officers began an inventory search of the vehicle at the
scene. Inside the trunk, they discovered a duffle bag contain-
ing make-up and women’s clothing, and a laptop bag contain-
ing $14,790 in U.S. currency, which was packaged in stacks
containing equal amounts of money, folded and arranged to
1
A subsequent lab analysis revealed this substance to be baking soda.
McCord testified at trial that he used this baking soda both to brush his
teeth and to mix with cocaine in order to make crack.
UNITED STATES v. MURPHY 5
offset one another, and then banded with rubber bands. Based
on his training, Trooper Pruett knew this type of packaging
was often used by drug dealers in the purchase of large quan-
tities of narcotics. Murphy claimed ownership of the money
and stated that he had withdrawn the money from a bank
account, but he admitted that he had no documentation of this
withdrawal. Murphy claimed to have earned the money by
operating a lawn care business. Murphy further stated that he
was planning to use the money to purchase shoes and clothing
in New York for stores that he planned to operate in Alabama.
A canine unit trained to detect the smell of narcotics was
brought first to the scene of the traffic stop and then to the
Sheriff’s Department. While the drug dog did not alert to the
vehicle on the scene, it did alert to the currency at the station
in a manner indicating that it was positive for drug residue.
Prior to the vehicle being towed, the officers removed all
items from the vehicle and transported them to the Sheriff’s
Department for completion of the inventory. All three of the
vehicle’s occupants were transported to the Wythe County
Sheriff’s Department for booking. When Murphy was told
that he was going to be fingerprinted, he told Trooper Pruett
his true name and date of birth. Murphy told Trooper Pruett
that he had lied about his identity because he was on parole
for several drug violations and had left the state of Alabama
without his parole officer’s permission. His identity was veri-
fied through NCIC and by photo identification faxed to the
Sheriff’s Office from an Alabama jail.
While at the Sheriff’s Department, McCord made several
requests to go to the restroom. He was searched prior to being
allowed to go to the restroom, and a bag containing crack
cocaine and powder cocaine was recovered from his under-
wear. At that point, McCord’s duffle bag was more thor-
oughly searched, and a business card was discovered, which
revealed McCord’s true name. McCord’s identity was verified
by photo identification faxed from Alabama authorities, who
6 UNITED STATES v. MURPHY
advised that there was an outstanding arrest warrant for
McCord for distribution of narcotics.
At the Sheriff’s Department, the officers continued to
inventory the items removed from the vehicle. One of the
items that had been removed from the glove compartment of
the vehicle was a plastic bag containing a yellow Timberland
t-shirt. When the officers searched the bag at the Sheriff’s
Department, they discovered that inside the shirt were 26
uncut sheets of counterfeit $100 bills. Murphy denied any
knowledge of the counterfeit money, although he admitted
that he had placed the plastic bag in the glove compartment
at McCord’s request.
During the inventory of the items seized from the vehicle,
a supervisor advised Trooper Pruett that some of the cell
phones contained possible incriminating information, and he
instructed Trooper Pruett to log them in as evidence.
The evidence in this case was transferred to Virginia State
Police headquarters and subsequently turned over to the cus-
tody of a Drug Enforcement Administration (DEA) Task
Force Officer, who transported it to the DEA office for pro-
cessing. The evidence, including Murphy’s cell phone, was
examined by DEA Special Agent Brian Snedecker on June
29, 2006. Snedeker identified several text messages sent from
an individual named Brian Sheppard. In a telephone interview
with Snedeker that same day, Sheppard stated that Murphy
was his drug supplier.
II.
In reviewing the denial of a motion to suppress, we must
construe the facts in the light most favorable to the govern-
ment. United States v. Kimbrough, 477 F.3d 144, 147 (4th
Cir.), cert. denied, 128 S. Ct. 154, 169 L. Ed. 2d 106 (2007).
We review the district court’s factual findings for clear error
and its legal conclusions de novo. Id.
UNITED STATES v. MURPHY 7
III.
Murphy first argues that the district court erred in refusing
to suppress evidence of his cell phone and its contents. Spe-
cifically, Murphy contends that the district court erred in con-
cluding that the cell phone was seized during a search incident
to arrest because there was no evidence presented to indicate
that the cell phone was located on his person at the time of his
arrest. He further argues that the officers were not authorized
to examine the contents of the phone without first obtaining
a warrant. We will address each of these arguments in turn.
A.
The Fourth Amendment protects individuals against "un-
reasonable searches and seizures." U.S. Const., amend. IV.
Warrantless searches "are per se unreasonable under the
Fourth Amendment — subject only to a few specifically
established and well-delineated exceptions." United States v.
Bush, 404 F.3d 263, 275 (4th Cir. 2005) (quoting Mincey v.
Arizona, 437 U.S. 385, 390, 98 S. Ct. 2408, 57 L. Ed. 2d 290
(1978)). One of the well-recognized exceptions to the warrant
requirement is a search incident to a lawful arrest. See United
States v. Currence, 446 F.3d 554, 556 (4th Cir. 2006). Pursu-
ant to this exception, law enforcement officers following a
lawful arrest may search "the arrestee’s person and the area
‘within his immediate control.’" Id. (quoting Chimel v. Cali-
fornia, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685
(1969)).
At the suppression hearing, Murphy’s counsel initially
argued that the officers lacked probable cause to arrest Mur-
phy for the offense of obstruction of justice and that the evi-
dence seized from Murphy’s person following his arrest
therefore should be suppressed. When the magistrate judge
noted that there had been no testimony to indicate that any
items had been seized from Murphy’s person, Murphy’s
counsel stated that it was her understanding from her client
8 UNITED STATES v. MURPHY
that the cell phone had been retrieved from his person, and
she asked permission to recall the arresting officers to verify
that fact. Trooper Chapman was recalled to the stand and tes-
tified that he recalled Murphy having a cell phone in his pos-
session, as Murphy had shown him some numbers in the cell
phone. Trooper Chapman further recalled that, at one point,
Murphy even gave him the phone and instructed him on how
to use it to retrieve phone numbers and other stored informa-
tion.
On appeal, Murphy does not challenge the district court’s
finding of probable cause for his arrest. Rather, he limits his
argument to challenging whether there was evidentiary sup-
port for the district court’s finding that the cell phone was
seized from his person during a search incident to that arrest.
This argument, however, is without merit. The testimony of
Trooper Chapman, which was elicited by Murphy’s own
counsel, clearly provided a reasonable basis for the district
court to infer that Murphy had the cell phone in his possession
at the time of his arrest. As such, the district court’s factual
finding that the cell phone was found on Murphy’s person
was not clearly erroneous. Accordingly, we conclude that the
district court did not err in determining that the cell phone
was seized lawfully during a search incident to arrest.2
B.
Next, Murphy argues that the warrantless search of the con-
tents of the cell phone was not lawful for two reasons. First,
he argues that it was improper because there was no evidence
of the volatile nature of the cell phone’s information. Second,
he argues that the search of the cell phone’s contents was
2
In any event, regardless of whether the cell phone was located on Mur-
phy’s person or within the vehicle, the cell phone was also subject to sei-
zure as a result of the subsequent inventory search. See United States v.
Banks, 482 F.3d 733, 739 (4th Cir. 2007). The propriety of this inventory
search is discussed in greater detail later in Part IV of this opinion.
UNITED STATES v. MURPHY 9
unlawful because it was not contemporaneous with his arrest.
Because Murphy did not raise these issues below, we review
his claims for plain error. See United States v. Olano, 507
U.S. 725, 731-32, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993).
Citing the "manifest need . . . to preserve evidence," this
Court has held on at least two prior occasions, albeit in
unpublished opinions, that officers may retrieve text messages
and other information from cell phones and pagers seized
incident to an arrest. See United States v. Young, 278 Fed.
Appx. 242, 245-46 (4th Cir. May 15, 2008) (per curiam)
(holding that officers may retrieve text messages from cell
phone during search incident to arrest), cert. denied, 129 S.
Ct. 514 (2008); United States v. Hunter, No. 96-4259, 1998
WL 887289, at *3 (4th Cir. Oct. 29, 1998) (holding that offi-
cers may retrieve telephone numbers from pager during
search incident to arrest). Similarly, the Fifth Circuit and Sev-
enth Circuit have held that the need for the preservation of
evidence justifies the retrieval of call records and text mes-
sages from a cell phone or pager without a warrant during a
search incident to arrest. See United States v. Finley, 477 F.3d
250, 260 (5th Cir.), cert. denied, 127 S. Ct. 2065, 167 L. Ed.
2d 790 (2007); see also United States v. Ortiz, 84 F.3d 977,
984 (7th Cir. 1996).
Murphy argues that whether a cell phone may be searched
without a warrant can be determined only upon the officers
ascertaining the cell phone’s storage capacity. In so arguing,
he concedes that a device with a small storage capacity may
be searched without a warrant due to the volatile nature of the
information stored, but that a search of a cell phone with a
larger storage capacity would implicate a heightened expecta-
tion of privacy and thus would require a warrant to be issued
before a search could be conducted.
Murphy’s argument is problematic for several reasons.
First, Murphy has not provided the Court with any standard
by which to determine what would constitute a "large" storage
10 UNITED STATES v. MURPHY
capacity as opposed to a "small" storage capacity, as he does
not quantify these terms in any meaningful way. Second,
Murphy has introduced no evidence that his cell phone had
the requisite "large" storage capacity which he contends is
subject to a heightened expectation of privacy. Third, even
assuming that his cell phone does have a "large" storage
capacity, his argument still fails because it is premised on the
unwarranted assumption that information stored on a cell
phone with a "large" storage capacity would be any less vola-
tile than the information stored on a cell phone with a "small"
storage capacity.
Finally, Murphy’s argument must be rejected because to
require police officers to ascertain the storage capacity of a
cell phone before conducting a search would simply be an
unworkable and unreasonable rule. It is unlikely that police
officers would have any way of knowing whether the text
messages and other information stored on a cell phone will be
preserved or be automatically deleted simply by looking at the
cell phone. See Young, 278 Fed. Appx. at 245. Rather, it is
very likely that in the time it takes for officers to ascertain a
cell phone’s particular storage capacity, the information
stored therein could be permanently lost. For these reasons,
we reject Murphy’s argument that the government must ascer-
tain a cell phone’s storage capacity in order to justify a war-
rantless search of that phone incident to arrest.
Further, Murphy’s argument that the search of the cell
phone’s contents was unlawful because it was not performed
contemporaneously with his arrest is also without merit. The
evidence establishes that the initial search of the cell phone
occurred in Murphy’s presence and at his direction, after he
indicated to Trooper Chapman that the phone contained phone
numbers for people who could corroborate his identity.
Another search of the cell phone occurred at the Sheriff’s
Department during the course of the inventory search, when
a supervising officer noted that the cell phone contained
potentially incriminating information and directed Trooper
UNITED STATES v. MURPHY 11
Pruett to retain the cell phone as evidence in the case. Of
course, once the cell phone was held for evidence, other offi-
cers and investigators were entitled to conduct a further
review of its contents, as Agent Snedeker did, without seeking
a warrant. See United States v. Edwards, 415 U.S. 800, 803-
04, 94 S. Ct. 1234, 39 L. Ed. 2d 771 (1974). For these rea-
sons, we conclude that the district court committed no error,
plain or otherwise, in refusing to suppress the contents of
Murphy’s cell phone.
IV.
Murphy next argues that the district court erred in conclud-
ing that the $14,790 in U.S. currency and the counterfeit
money found in the vehicle were properly seized as a result
of a lawful inventory search of the vehicle. Specifically, Mur-
phy argues that the officers’ failure to complete the search at
the scene of the traffic stop gives rise to an inference of bad
faith, in that it demonstrates that the officers were merely
rummaging for incriminating evidence when they continued
searching the vehicle’s contents at the Sheriff’s Department.
Because Murphy did not challenge the legality of the inven-
tory search below, we review his claim for plain error. See
Olano, 507 U.S. at 731-32, 113 S. Ct. 1770.
"A proper inventory search is merely an incidental adminis-
trative step following arrest and preceding incarceration, con-
ducted to protect the arrestee from theft of his possessions, to
protect the police from false accusations of theft, and to
remove dangerous items from the arrestee prior to his jailing."
Banks, 482 F.3d at 739 (internal citations and quotation marks
omitted). An inventory search, however, must "be conducted
according to standardized criteria," such as a uniform police
department policy. Colorado v. Bertine, 479 U.S. 367, 374
n.6, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987). For an inventory
search to be lawful, the vehicle searched must be in the lawful
custody of the police. "If the vehicle is in lawful custody, the
police may inventory the vehicle, if such inventories are rou-
12 UNITED STATES v. MURPHY
tine and conducted pursuant to the standard police procedures,
so long as the purpose of the inventory is to secure the car or
its contents and not to gather incriminating evidence against
the owner." United States v. Brown, 787 F.2d 929, 932 (4th
Cir. 1986).
Upon reviewing the evidence, we conclude that the inven-
tory search conducted in this case was valid. As the testimony
of Trooper Pruett established, the towing of the vehicle
required a full search of the vehicle and its contents pursuant
to the inventory search policy of the Virginia State Police.
While Murphy argues that the inventory search was nothing
more than a pretext for gathering evidence against him, he
points to no evidence in support of this claim, aside from the
fact that the officers decided to complete the inventory search
at the Sheriff’s Department after the vehicle was towed. The
officers’ decision to complete the inventory search of the
vehicle’s contents at a different location, however, was
entirely reasonable under the circumstances. The stop
occurred in the early morning hours along a busy interstate
highway. The officers recovered several containers from the
vehicle which needed to be searched. The mere fact that the
officers opened some of these containers at the scene of the
stop and removed the rest of the unopened containers from the
vehicle in order to complete their inventory search at the
Sheriff’s Department in no way renders their inventory search
unlawful. The Supreme Court has held that inventory searches
may be conducted at locales other than the initial scene of
arrest. See Illinois v. Lafayette, 462 U.S. 640, 645-46, 103 S.
Ct. 2605, 77 L. Ed. 2d 65 (1983) (upholding inventory search
of person and belongings conducted at police station); see
also United States v. Colclough, 549 F.2d 937, 940 (4th Cir.
1977) (upholding inventory search at impound lot). Thus, the
officers’ decision to complete the inventory search at the
Sheriff’s Department did not render the search invalid.
For these reasons, we conclude that the district court did
not commit error, plain or otherwise, in denying Murphy’s
UNITED STATES v. MURPHY 13
motion to suppress the counterfeit money and U.S. currency
found in the vehicle.
V.
Accordingly, for the foregoing reasons, the judgment of the
district court is affirmed.
AFFIRMED