Police Cannot Search Cell Phones Incident to Arrest Without a Warrant

On June 25, 2014, the US Supreme Court released its decision in Riley v. California and the companion case of US v. Wurie.  The Court held that the police may not search digital information on a cell phone that was seized from an individual in reliance on the “search incident to arrest” exception to the warrant requirement.

The Court began its analysis by recalling basic principles of search and seizure, recalling immediately that the touchstone of our Fourth Amendment jurisprudence is “reasonableness”.  This generally means that the police must obtain a warrant from a detached and neutral judicial officer before conducting a search.  Warrantless searches are reasonable only if they fall within a specific exception to the warrant requirement.  The Court also discussed the history and development of search-incident-to-arrest as reflected in various cases including Chimel, Robinson and Gant.  Against this backdrop of familiar concepts, the Court took up the question presented by Riley and Wurie, which is the reasonableness of a warrantless search incident to a lawful arrest when the subject of a search is the contents of a cell phone.

First, the Court considered the two primary concerns for warrantless searches incident to arrest raised in Chimel, which were officer safety and destruction of evidence.  As to officer safety, the Court observed that digital data stored on a cell phone cannot be used as a weapon to harm officers, or to effect an escape.  Officers can examine the physical phone to see if it contains something that could be used as a weapon (e.g., a hidden razor blade), but could then secure the phone and refrain from further search activities until a warrant is obtained.  As to destruction of evidence, the United States and California both argued that cell phone data is subject to remote “wiping” (a phone connected to a wireless network receives a signal that erases stored data), and “encryption”, (a security feature that locks the phone and causes the data to remain encrypted until released with the correct password).  In rejecting these concerns, the Court observed that there was nothing before it indicating  that these issues were prevalent, and that there were other ways to address them.  For example, a phone could be disconnected from a wireless network, or placed in a commonly available aluminum foil bag that would inhibit the necessary transmissions (already in use by several police departments).  If the phone is unlocked when it is discovered, it also may be possible to disable its locking feature.

The Court also spoke at great length of the capabilities of modern cell phones, and recognized the great extent that they impact upon privacy rights.  The Court observed that cell phones are really computers that function as. among other things, telephones.  They also can be used as cameras, video players, address books, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.  They have immense storage capacity, and can hold a substantial amount of data that describes every aspect of the owner’s personal life in great detail.  It has become commonplace for people to carry cell phones that hold significant quantities of personal data.  Additionally, storage capacity is increased by what has become known as “cloud computing”.  Cell phones can also be used to track an individual’s physical movements in detail.

For all of these reasons, the Court held that generally speaking, the search-incident-to-arrest exception to the warrant requirement cannot apply to cell phones.  However, the Court suggested that it may be possible to search a cell phone with a telephonic warrant obtained on the spot.  Further, there may be cases where cell phone searches fall into a different exception to the warrant requirement.

Finally, the decision indicates quite plainly that this area of Fourth Amendment law will evolve rapidly.  Given the manner in which technology changes, that evolution could be somewhat volatile.  Given the prevalence of hand-held devices in all of our lives, every defense attorney must remain on top of this area of search and seizure law.




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