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SCOTUS: A warrant is required to search a cell phone seized incident to arrest

Riley v. California, USSC No. 13-132 (together with United States v. Wurie, USSC No. 13-212), 2014 WL 2864483 (June 25, 2014), reversing People v. Riley, No. D059840 (Cal. App. 4th Dist. 2013) (unpublished) (and affirming United States v. Wurie, 728 F.3d 1 (1st Cir. 2013)); Scotusblog case page (which includes links to briefs and commentary) and symposium page (additional opinion commentary)

In a sweeping and significant ruling, a unanimous Supreme Court holds that officers must generally secure a warrant before conducting such a search of a cell phone found on a defendant at the time of his or her arrest.

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life[.]” ... The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant. (Slip op. at 28).

After Riley was arrested for a traffic offense police seized the smart phone he was carrying and twice examined it without a warrant. Data from the phone linked Riley to a previous shooting. The state court held the search of the phone was proper because it was incident to the defendant’s arrest. (Slip op. at 1-3). Wurie was arrested after making a suspected drug sale. A “flip” phone seized when he was arrested received repeated calls from a number identified as “my house.” Police looked at the phone’s call log and found an address. They used that (and other) information to get a warrant for the home, which turned up additional evidence of drug dealing. The First Circuit rejected the claim police could search the phone incident to Wurie’s arrest because neither rationale for conducting such a search—protecting arresting officers or preserving destructible evidence—applied. (Slip op. at 3-4).

The search incident to arrest exception to the warrant requirement, as developed in Chimel v. California, 395 U. S. 752 (1969), United States v. Robinson, 414 U.S. 218 (1973), and Arizona v. Gant, 556 U.S. 332 (2009), allows searches of personal property immediately associated with the arrestee based on a balancing of the relatively minor additional intrusion of the search on the person’s privacy (compared to the greater intrusion of being taken into custody) and the weighty governmental interests in officer safety and evidence preservation. (Slip op. at 6-8, 15-16). Acknowledging this balancing of interests supported the search incident to arrest exception in Robinson (where police opened up a crumpled cigarette pack found in arrestee’s pocket), the Court nonetheless rejects “a mechanical application” of Robinson to support the warrantless search of a cell phone:

… [W]hile Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones. On the government interest side, Robinson concluded that the two risks identified in Chimel—harm to officers and destruction of evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson. We therefore decline to extend Robinson to searches of data on cell phones …. (Slip op. at 9-10).

Examining the government interests in more detail, the Court notes 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, particularly once an officer has secured the phone. (Slip op. at 10-11). Further, the government’s concerns about “remote wiping” or encryption of a phone after arrest (slip op. at 12-13) justify searching the phone to prevent destruction of evidence. There is “little reason to believe that either problem is prevalent” (slip op. at 13), allowing a search of the phone may not prevent the problems, and, at least as to remote wiping, there are practical ways to minimize the risk of that happening (e.g., turning the phone off or securing it in a Faraday bag) (slip op. at 13-14).

Outweighing the government’s interests is the significant intrusion on privacy a cell phone search entails. The government’s claim that searching a cell phone is “materially indistinguishable” from searching a pocket or personal item (like a wallet or purse) is strongly rejected by the Court:

That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. … (Slip op. at 17).

The nature of cell phones as “minicomputers” and the immense amount of data they store or allow access to makes them different “in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” (Slip op. at 17). Before “the digital age,” a search of a person was limited by physical realities, so it usually constituted only a narrow intrusion on privacy. But both the storage capacity of cell phones, and the ability of many phones to access data in the “cloud,” means people now typically carry a cache of sensitive personal information with them. (Slip op. at 17-22). Thus, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.” (Slip op. at 20).

Having rejected the government’s argument for extending Robinson to cell phones, the Court also rejects its “fallback” option of adopting the Gant rule allowing a warrantless search of an arrestee’s cell phone whenever it is reasonable to believe that the phone contains evidence of the crime for which the arrest was made. Gant relied on “circumstances unique to the vehicle context”—namely, “a reduced expectation of privacy” and “heightened law enforcement needs” when it comes to motor vehicles. 556 U.S., at 343, citing Thornton v. United States, 541 U.S. 615, 631 (2004) (Scalia, J., concurring). “For reasons that we have explained, cell phone searches bear neither of those characteristics.” (Slip op. at 22-23). In addition, “a Gant standard would prove no practical limit at all when it comes to cell phone searches.” (Id.).

In a coda, the Court acknowledges the impact of its holding on police practices, and reminds readers that “[o]ur holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.” (Slip op. at 25). That impact will be lessened by the fact that cell and smart phones have also made the process for obtaining a warrant far more efficient.

Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. “One well-recognized exception applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’” Kentucky v. King, [131 S. Ct. 1849, 1856 (2011)] (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)). Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. [Id.]. (Slip op. at 26).

Justice Alito concurs, writing separately only to disagree that a search incident to arrest is founded only on protecting officer safety and preventing evidence destruction, but agrees with that the nature of cell phones “calls for a new balancing of law enforcement and privacy interests.” (Concur. at 4).

With the rejection of the search-incident-to-arrest justification for warrantless searches of a cell phone seized during an arrest, the next topics of litigation will include: 1) whether there were exigent circumstances justifying a warrantless search; and 2) whether evidence found in a warrantless search of a phone conducted before Riley will be admissible under the good-faith exception to the exclusionary rule. Wisconsin has one case addressing the first issue. State v. Carroll, 2010 WI 8, ¶¶33-42, 322 Wis. 2d 299, 778 N.W.2d 1, held that the search of a cell phones image gallery wasn’t justified by exigent circumstances—i.e., by a concern the images would disappear before a warrant could be obtained—though answering an incoming call was. (For more on Carroll, see our post here.)

As to the good-faith exception, warrantless cell phone searches invalidated by Riley differ from the warrantless searches invalidated by Gant and Missouri v. McNeely, 133 S. Ct. 1552 (2013). Gant and McNeely overruled clearly established state court precedent allowing the search, but we have no clearly established precedent allowing the kind of searches governed by Riley, and Carroll, 322 Wis. 2d 299, ¶33, held a similar search to be improper. Thus, the good-faith exception recognized for searches conducted in reliance on a case that is later overruled  shouldn’t apply here, and cases that are not yet final should reap the benefit of Riley’s ruling.

Finally, the Court’s references to “the digital age” and to cell phones as “minicomputers” may be a basis for arguing that Riley means computer searches will be subject to different rules than other searches under the Fourth Amendment. The opinion may even show there’s support on the Court for the so-called “mosaic” theory that collection and inspection of large amounts of “aggregated personal data constitutes a search that is subject to the Fourth Amendment. Orin Kerr has some initial thoughts on these topics for those of you interested.

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