Delay in Getting Warrant to Search Phone Bars Immunity

Wednesday, December 24, 2025

Page 3

Ninth Circuit:

Delay in Getting Warrant to Search Phone Bars Immunity

Opinion Says Lag in Dealing With Seized Property Was Longer Than Reasonably Necessary Under Clearly Established Law, Being ‘Busy’ Is Not Valid Excuse, Drawing Dissent

By Kimber Cooley, associate editor

A divided panel of the Ninth U.S. Circuit Court of Appeals held yesterday that a District Court judge properly denied qualified immunity to a police officer who waited 36 days to seek a search warrant of the defendant’s cellphone that had been seized after he was found driving, without a license, a vehicle containing a gun with a missing serial number.

An officer is entitled to qualified immunity from an action asserting a violation of the Constitution under 42 U.S.C. §1983 if the plaintiff fails to show a constitutional breach or if the right at issue was not “clearly established.”

The decision came by way of a memorandum opinion, signed by Circuit Judges Anthony D. Johnstone and Ana de Alba, citing jurisprudence governing warrantless seizures of packages and the 2014 U.S. Supreme Court case of Riley v. California, which highlights the importance of cellphones in modern life and establishes that officers are required to obtain a warrant before searching such devices.

In yesterday’s opinion, the judges declared that it was clearly established that the delay was “longer than reasonably necessary” for the officer, “acting with diligence,” to obtain a search warrant, in violation of the Fourth Amendment.

Dissenting, Circuit Judge Patrick J. Bumatay took issue with the assertion that the principle was “clearly established,” saying:

“Even if failing to obtain a search warrant for a cellphone within 36 days violated [the plaintiff’s] Fourth Amendment right, no case provides ‘clearly established law,’ and so [the officer] is entitled to qualified immunity.”

Yesterday, the same panel also decided an appeal of another case, filed by the same plaintiff against officers of the same police department—that of Alameda County’s Union City—relating to an incident that occurred a few months after the first one. Johnstone and Alba again affirmed a denial of qualified immunity, and Bumatay dissented.

Traffic Stop

The first incident occurred on July 27, 2022, when Officer Justin Noyd conducted a traffic stop of Malik Langham after noticing that the car Langham was driving bore license plates that were devoid of state markings and instead read “DOT EXEMPT PR1V4T3 FOR NON-COMMERCIAL USE ONLY.” After discovering that Langham had an outstanding warrant for his arrest, he was placed in the back of the patrol car, and a tow truck was requested.

An inventory search was conducted by Officer Elmore Spencer, who found a pistol in the center console.

On Sept. 1, 2022, Langham, who had been released from custody, requested the return of the phone but was rebuffed when an employee told him that he could not retrieve the device because it had not yet been searched. A warrant was obtained later that day, but the phone was not handed over to Langham until almost three months later.

In October 2022, Langham filed a complaint against Noyd, Spencer, and Union City, asserting Fourth Amendment claims under §1983 for unlawful arrest, illegal search, and challenging the seizure of his cellphone, among other causes of action.

District Court Judge Yvonne Gonzales Rogers of the Northern District of California addressed dueling requests for summary judgment in October of last year, granting the defendants’ motions as to all claims but the one dealing with the warrantless seizure of the cellphone. Acknowledging that “the initial seizure of the phone was permitted,” she opined:

“There is no such ‘busy schedule’ exception to the Fourth Amendment….Officer Noyd’s ability to procure the warrant the same day as he applied for it further indicates obtaining the warrant was no onerous task. Thus, assessing the reasonableness of the delay under the totality of the circumstances, defendant Noyd is not entitled to summary judgment.”

She added that “the Court will not grant defendants summary judgment on qualified immunity grounds in this case” as “[n]o fact specific to these incidents obviated the need for any officer to comply with well-established law guiding…the search and seizure of a criminal suspect’s property.”

Ninth Circuit’s View

Johnstone and de Alba wrote:

“Langham had an undiminished possessory interest in his phone….Officer Noyd offered evidence that he was busy. However, there is no evidence showing that Officer Noyd pursued the investigation into Langham or took any action to procure a search warrant before Langham asked for his phone’s return.”

They added:

“That the September 1, 2022 search warrant solely relied on facts known to Officer Noyd at the time he warrantlessly seized the phone on July 27, 2022, and was applied for and granted on the same day Langham asked for the phone back, shows that the delay could have been shorter if Officer Noyd had acted diligently.”

Citing cases establishing that “officers violate the Fourth Amendment if their lack of diligence in pursuing their investigation causes an unreasonable delay in obtaining a search warrant for warrantlessly seized property,” they opined that “Langham satisfied his burden of showing a clearly established right” and that “[t]he 36-day delay was ‘longer than reasonably necessary’ for Officer Noyd, ‘acting with diligence, to obtain [a search] warrant.’ ”

Observing that “we have jurisdiction under 28 U.S.C. §1291 to consider an interlocutory appeal of an order denying qualified immunity at summary judgment,” the jurists said, in a footnote:

“Because we affirm the district court’s denial of qualified immunity, we conclude that we lack pendent jurisdiction over the grant of summary judgment for Langham.”

Bumatay’s Dissent

Bumatay said:

“The Supreme Court has repeatedly admonished lower courts for reading clearly established law ‘at a high level of generality.’…Especially in the Fourth Amendment context, we are looking for cases that establish bright lines for officers to easily follow. General statements of the law are incapable of giving this fair notice to officers.”

Saying that the majority’s citation of Riley for the proposition that cellphones are an integral part of daily life is “obviously not enough” to meet the standard, he distinguished the remaining cases relied upon by the majority, pointing out that one involved officers detaining a man for two hours before entering his home, another suggested a 29-hour limit for obtaining judicial permission to search seized packages, and a third addressed a seizure of luggage.

He opined:

“[T]hese cases don’t clearly establish that Officer Noyd violated Langham’s Fourth Amendment right.”

Noting that “Officer Noyd blames the delay in obtaining the search warrant on the increase in violent crime and shootings in Union City” and that Langham “doesn’t rebut any of these facts,” he concluded:

“We should have reversed and granted qualified immunity to Officer Noyd.”

The case is Langham v. Noyd, 24-7292.

Second Case

On Oct. 5, 2022, Spencer responded to a call of reckless driving to find Langham driving the same car with the noncompliant license plates. He was detained after a records check confirmed that he did not have a valid driver’s license, but he was later released at the scene; the car was impounded.

That same month, he filed a complaint against Spencer, another responding officer, and the city, alleging Fourth Amendment violations under §1983 relating to, among other things, the search and seizure of the vehicle.

In the same October 2024 order that addressed the earlier incident, Rogers granted the defendants’ motion for summary judgment except as to the impoundment and search of the car, denying qualified immunity to the officers.

Johnstone and de Alba affirmed in a memorandum decision, noting that, “[u]nder the Fourth Amendment, the community caretaking doctrine does not justify impoundment when an unlicensed driver is not arrested; the car…does not…create a hazard…; and the officer did not consider whether the driver can provide for the car’s removal before impounding it.” They added that “an inventory search cannot be justified by an unlawful impoundment.”

Disagreeing, Bumatay said that “his car had no valid license[] plates, registration tags, and had its windows tinted so dark the officer couldn’t see inside.” Under those circumstances, he opined that “Langham’s car could not be legally driven, either by him or any other licensed driver” and “no constitutional violation occurred in the towing of his car.”

The case is Langham v. Spencer, 24-7233.