Warrantless Cell Phone Searches Incident to Arrest

The United States Supreme Court has granted certiorari in two cases that consider whether the police can conduct a warrantless search of an individual’s cell phone incident to arrest.  Courts have held previously that the police can search an individual’s person and effects at the time of arrest, but cell phones often contain a substantial amount of personal data totally unrelated to the arrest or the relevant charges.

The cases are Riley v. California and United States v. Wurie.  In Riley, the defendant is challenging a police officer’s search of his smartphone.  In Wurie, DOJ is seeking review of an appellate decision requiring warrants to search a cell phone.  These cases come on the heels of recent cases examining related issues, such as requiring a warrant to track a cell phone’s location, and to use GPS tracking devices.

Technology has progressed far beyond the point where a cell phone can be viewed as a simple communications device.  A cell phone really is a pocket computer.  Modern cell phones can be used to store incredible amounts of data, both internally and via remote services accessed through the Internet.  This private data includes, but is not necessarily limited to, text messages, e-mails, call records, documents, photos, videos, and related items.  This private material – which will almost always reveal intimate details concerning a person’s digital life – may have no relation of any kind or nature whatsoever to the arrest or the charges.One of the central issues in these cases is how courts view cell phones.  Generally speaking, the police can search the arrestee after a lawful arrest, and this search can include containers found on the arrestee’s person.  Some courts have concluded that a cell phone should be treated like any other container that can be searched incident to a lawful arrest.  Other courts have required a warrant to search a cell phone because of the privacy interests at stake.

The dual rationale of warrantless searches – officer safety and evidence preservation – clearly do not apply to cell phones discovered on the arrestee’s person at the time of arrest.  Arresting officers do not face any harm from a cell phone, which obviously is not a weapon.  Further, the cell phone is a relatively small and easily stored device.  Once in police custody, it can be safeguarded until a warrant is obtained.  Why should the police be able to see the data stored on a cell phone if neither of the traditional justifications for warrantless searches apply?  What procedural mechanisms can or should be implemented to protect purely private data having nothing to do with an arrest or the underlying charges from unnecessary or inappropriate disclosure?

The problems presented by these cases arise from the fact that each of us has a growing online existence that we manage with increasingly sophisticated devices.  Further, the technology continues to grow rapidly.  Devices are becoming more powerful and less expensive, and almost everybody has at least one.  In sharp contrast, much of our Fourth Amendment jurisprudence arises from cases that are decades old.  This body of law is developing at a glacial pace relative to the technology at issue.

A decision currently is expected by June, 2014.




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