Article by Daniel A. Levy, Esq.
Related: Police cannot track cellphones without a warrant, Can police detain me if they have a search warrant?, What to do if you are pulled over.
In my criminal defense practice, I hear clients complain that police officers stopped them and demanded that they inspect and search through the client’s cell phone. Of course, this demand is usually made without first obtaining a warrant. Some officers (and even lawyers) believed that searching a cell phone was permitted without a warrant… until now. The Supreme Court recently held in the unanimous opinion of Riley v. California that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.
The case actually concerned two separate criminal convictions, where the defendants were stopped for a relatively minor crime and then later tied to a larger crime due to the warrant-less search of their cell phones. In the first case, Mr. Riley was pulled over for having an expired registration. The officer learned that the man’s license was suspended so he arrested Mr. Riley and impounded the vehicle. While searching the vehicle, the officer found guns. The officer then searched through Mr. Riley’s cell phone and found texts with gang-related statements. That evidence was ultimately used in Riley’s conviction for connections with a gang-related shooting. In the companion case, Mr. Wurie was arrested after police observed him participate in a drug sale. At the station, the officer seized his cell phone and noticed repeated calls from “my house”. The officer then continued searching and found the address of “my house”, procured a warrant to search it, and found drugs and other contraband.
With both of these cases, the police were entitled to arrest the suspects but then seized their cell phones from the suspects’ pockets. The convictions for the additional crimes were really only possible because of the warrant-less searches of the phones. The question for the Supreme Court was whether these searches are allowed without a warrant. The State argued that the searches were valid searches incident to an arrest. The Supreme Court unanimously disagreed.
First, a little legal background: Searches generally require a warrant; however, there are many exceptions to that requirement. One of those exceptions is that police may make a search incident to an arrest. The area in and around a suspect’s area of control may be searched without a warrant, an impounded vehicle may be searched, and in some cases (but not all) bags and containers may be searched.
Things are different, though, in the digital age. Specifically, a cell phone really is not a “container”. Nor is it a paper document. This is important because a piece of paper in a pocket may be read and a container like a cigarette packet may be opened and searched (those two situations were discussed in past cases). What the Supreme Court correctly observed is that a cell phone (specifically smart phones) differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. The Court observed that this has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives. Simply put, it was never physically possible for a person to carry in their pockets anything close to the amount of information that is stored on today’s cell phones. And in fact, today’s cell phones could readily access data that is stored elsewhere (like in Dropbox, Google Drive, email and/or work-related servers, etc.). Clearly, accessing that material would be far beyond the scope of a search of an arrestee’s pockets.
Because of these facts, the Supreme Court held that, generally, the police must first obtain a warrant before conducting a search of a suspect’s cell phone. I applaud the Supreme Court for recognizing the changing reality in this digital age and applying the law correctly.