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Police Can No Longer Search Cell Phones Incident to Arrest

by Christian Desilets and Kim Williams  -   July 2, 2014


On June 25, the Supreme Court unanimously ruled that police cannot search the contents of cell phones incident to arrest (that is, as a routine part of the larger process of arrest). Officers can still physically examine them incident to arrest, and can still search them with a valid warrant or under exigent (serious and urgent) circumstances.

The Supreme Court’s decision came after weighing facts presented in two cases: U.S. v. Wurie and Riley v. California. The main question in both cases was: Does it violate the Fourth Amendment1 to search a cell phone incident to arrest? The Fourth Amendment prohibits unreasonable searches and seizures and requires warrants be supported by probable cause.

U.S. v. Wurie

In this case, police noticed an incoming call labeled “Home” on a suspected drug dealer’s flip-style cell phone. Looking up “Home” in the phone’s address book gave them information that led them to his house. They obtained a warrant and seized a firearm, ammunition, crack cocaine and marijuana from the house.

Riley v. California

In this case, officers pulled a vehicle over for expired tags and discovered that the driver had a suspended license. Upon impounding the car, officers found concealed weapons in it and arrested the driver for this offense. They looked through his smartphone briefly at the time, and, hours later, rummaged through its contents to see if they could find anything incriminating.  They found photos and videos that indicated gang involvement and implicated the suspect in a prior gang-related shooting (which the guns tied him to separately).

The key differences between the cases were:

  • the type of phone (an old-style flip-phone in Wurie and a smartphone loaded with content in Riley);
  • the degree to which the charges rested on the cell phone data (in Wurie, the government’s case was dependent on the data and in Riley it was just one element of proof among many);
  • the amount of time between the arrests and the searches (within minutes in Wurie and hours later in Riley); and
  • the extent of the search (In Wurie, the officers conducted a very limited, narrow search looking for specific information relating to the crime of arrest (since they suspected that the dealer’s main stash would be at his home), that they reasonably believed would be on the phone. In Riley, the officers conducted a general, exploratory search.)

As society and its inventions have advanced, the legal interpretation of the Fourth Amendment has needed to keep pace. The Bill of Rights was enacted over 200 years ago during the Colonial era. The equipment of the digital age, including the Internet, social media and cell phones, has opened new ways for people to communicate and new avenues for law enforcement to investigate crimes and gather evidence. In Wurie and Riley, the Supreme Court weighed the government’s interest in officer safety and preservation of evidence against Fourth Amendment privacy concerns. By deciding the cases as it did, the Court has communicated that it believes digital information is so different in nature from the physical items usually found in a suspect’s pockets that the old ways of balancing privacy and government interest are no longer applicable – at least in the case of cell phones.

Chief Justice John Roberts delivered the unanimous opinion of the Court. He noted that “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.” He also asserted that in both Riley and Wurie, officers could have secured the cell phones to prevent destruction of evidence while seeking a warrant. He further explained that the concerns about the remote destruction of evidence were highly speculative: insofar as these factors do occasionally come to the fore, the Court felt the existing exigency rules were capable of handling them.

Paramount to the Supreme Court’s decision is the nature of the modern cell phone. Chief Justice Roberts noted that cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” He goes on to say that cell phones are minicomputers with an immense capacity to store a vast array of data, including personal effects, such as photos, apps, bank account information and much more. Much of this data is often not even stored on the devices themselves, but on remote servers. Cell phones may also hold a variety of apps that access remote data without notifying the user. The officer conducting a search would, in effect, be accessing not just the phone in his hand, but also servers or computers located in other parts of the country. Roberts noted: “With all they contain and all they may reveal, they (cell phones) hold for many Americans ‘the privacies of life.’”

How this recent Court decision might impact searches of other types of digital devices incident to arrest has yet to be determined.

For more information:

Supreme Court Decision

New York Times article

1The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Both images: 

155786744 Copyright Alex Starosltsev, 2014 Used under license from Shutterstock.com
94844608 Copyright D. Hammonds, 2014 Used under license from Shutterstock.com

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