Cell Phone Searches Require Warrants

On June 25th 2014, the United States Supreme Court reached an unanimous decision in the case Riley v. California. The Court decided police may not generally search the cellphones of people they arrest without first securing a warrant. Prior to the Court’s decision, police officers relied on an exception to the warrant requirement known as “search incident to arrest” which has evolved to its current state by decisions in three major cases: First, Chimel v. California in 1969, established that if police arrest an individual they could search the arrestee’s body or the area within the arrestee’s reach in order to prevent the destruction of evidence or to seize a weapon. Then came United States v. Robinson in 1973, which involved a police officer feeling an object he could not identify during a pat down after an arrest. The officer removed the object and found it to be a crumpled cigarette package. Inside he found 14 capsules of heroin. There, the Court found the search unreasonable because Mr. Robinson was arrested for driving with a revoked license and was unlikely to have evidence of this crime on his person. It was also unlikely that a cigarette package contained anything to justify a protective search for weapons. The Supreme Court found the search reasonable, however, concluding that personal property immediately associated with the person being arrested can be searched and seized even if there was no concern for loss of evidence or weapons. Finally, Arizona v. Gant limited the ruling in Chimel; a police officer may search a vehicle “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Gant added an independent exception for a warrantless search of a vehicle’s passenger compartment “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'”

The Supreme Court in Riley v. California disagreed with the United States’ argument that cell phones were “materially indistinguishable” from other personal items carried by an arrestee, such as wallets and cigarette packages. Justice Roberts stated that was like saying “a ride on horseback is materially indistinguishable from a flight to the moon,” adding that “both are ways to get from point A to Point B, but little else justifies lumping them together.” The Court noted that cellphones are capable of storing large amounts of information, some of which is highly personal, that no person would ever be able to carry on his person in hard-copy form.

The United States further argued that warrantless search and seizure of cell phones were justified due to the risk that evidence on the phones may be destroyed. They stated that they could be vulnerable to remote wiping, which is when a phone connected to a wireless network receives a signal that erases stored data. This can happen when a third party sends a remote signal or if the phone is preprogrammed to delete data upon entering or leaving geographic areas. They also argued that cell phones could be vulnerable to encryption, which is when a phone locks data through sophisticated encryption that renders the phone “unbreakable” without a password.

The Supreme Court pointed out distinctions between these arguments and the focus of searches and seizures incident to arrest. Chimel established that the focus is on defendants who respond to an arrest by trying to conceal or destroy evidence within his reach. However, remote wiping’s primary focus rests on the actions of third parties not present at the scene of arrest. Encryption focuses on ordinary operation of the phone’s security features apart from any active attempts to conceal or destroy evidence upon arrest. The court also stated that they had been given “little reason to believe that either problem is prevalent,” and that the United States briefing only provided “a couple of anecdotal examples.”

The Court also noted that law enforcement is not without specific means to address threats to the destruction of evidence. Remote wiping can be fully prevented by disconnecting a phone from the network by either turning the phone off or removing the battery. For encryption they can leave the phone powered on and place it in an enclosure that isolates the phone from radio waves. This is commonly done using devices known as “Faraday bags,” which are essentially sandwich bags made of aluminum foil that are cheap, lightweight and easy to use. The Court also noted that certain fact specific exigent circumstances may still justify a warrantless search. They provide some extreme hypotheticals such as a suspect texting an accomplice who is preparing to detonate a bomb, or a child abductor who has information about the child’s location on his cell phone.

The Supreme Court stated that it “cannot deny” its decision “will have an impact on the ability of law enforcement to combat crime,” and added that “privacy comes at a cost.” They also added that their holding was “not that the information on a cell phone is immune from search,” but rather it was that “a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.” At a time when so much of an individual’s personal life is available on their phones, this comes as a vindication for personal privacy and Fourth Amendment’s protections against unreasonable searches and seizures.

The attorneys at The Law Office of Brian Jones, LLC are skilled advocates dedicated to protecting your privacy rights under the Fourth Amendment to the United States Constitution. If you or someone you love has been illegally searched, our dedicated criminal defense lawyers can obtain orders to prevent the government from using evidence against you at trial. The police and prosecutors have a nearly endless supply of resources available to make sure you go to prison for as long as the law allows. You must have a dedicated criminal defense warrior in your corner to fight against their illegal actions.