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Warrant Generally Required for Cell Phone Searches Incident to Arrest

Today the U.S. Supreme Court issued its opinion in the cases Riley v. California and U.S. v. Wurie, unanimously holding that “[t]he police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” We looked at the issues in these cases back in April when the Court heard arguments, and asked whether an arrest for DWI would permit police to search your cell phone. Today, we find out the answer is no. First, let’s review the facts of each case.

In Riley v. California, the defendant Riley was stopped for driving a car with expired tags and then it was discovered that his license was revoked. The law required that his car be impounded, and prior to impounding a car, the police were required to search the car. During that search, the police found two guns and subsequently arrested the defendant for possession of firearms. When they searched the defendant in connection with his arrest, they found his cell phone (a smartphone) which contained pictures of the defendant making gang signs and other indications of gang connection. This information was later used to tie the defendant to an earlier shooting and convict him on various charges, including attempted murder. Prior to trial, the defendant Riley moved to suppress the evidence obtained from the cell phone because the searches violated the Fourth Amendment. The trial court and California Court of Appeals both denied his motion based on a California Supreme Court case which held that searches of cell phones incident to arrest are permitted “so long as the cell phone was immediately associated with the arrestee’s person.”

In U.S. v. Wurie, the defendant Wurie was arrested on suspicion of selling small quantities of drugs. He was then taken to the police station where his personal belongings were inventoried.  Among his personal belongings was his cell phone (a flip phone).The officers opened the defendant’s cell phone when it rang but did not answer it. They found a number listed for “my house” and used a website to connect an address to that phone number. This address was different than the one at which the defendant claimed to live. When they went to the address connected to the phone number, the police found further evidence that the apartment was connected with the defendant. After obtaining a search warrant, the police searched the apartment and found drugs and a loaded firearm. The defendant Wurie moved to suppress the evidence obtained from the search of the apartment. The District Court denied this motion. The First Circuit reversed the denial of the motion and held that “cell phones are distinct from other physical possessions that may be searched incident to arrest without a warrant, because of the amount of personal data cell phones contain and the negligible threat they pose to law enforcement interests.”

The Court began its analysis with the Fourth Amendment, which states that

The 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.

Therefore, generally a warrant is required for a search or seizure to qualify as reasonable. However, there are exceptions to this rule that have been developed by case law over the years. One of these exceptions is a search made incident to a person’s arrest. There are three cases which lay out the rules governing a search made incident to an arrest.

First, Chimel v. California (1969) involved a person arrested in his house. Upon his arrest, the police officers searched his entire house. The Court held that it was reasonable to search the arrestee to remove weapons which might endanger law enforcement officers and it was also reasonable to search and seize evidence on the arrestee’s person which might be destroyed or concealed. This rationale justified a search of the arrestee’s person and the area “within his immediate control,” meaning “the area from within which he might gain possession of a weapon or destructible evidence,” but did not justify the search of his house.

Second, U.S. v. Robinson (1973) involved a person arrested for driving with a revoked license. Upon his arrest, the police officer patted him down and felt an object that was unidentifiable through his coat. The officer removed it from the coat and found a cigarette pack containing heroin. The Court of Appeals concluded that the search was unreasonable because it was unlikely that there would be evidence of the crime on the arrestee’s person and it thought the search was not justified as a search for weapons. The Supreme Court held that officers do not have to make a “case-by-case adjudication” to determine if one of the justifications is present. Instead, the “custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” Therefore, the search of Robinson was reasonable “even though there was no concern about the loss of evidence, and the arresting officer had no specific concern that Robinson might be armed.”

Third, Arizona v. Gant (2009) involved the search of an arrestee’s vehicle. The Court in Gant restated the concerns for officer safety and evidence preservation and held that officers were only permitted to search a vehicle “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” However, Gant introduced a further exception which permitted the “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.””

Because the technology of cell phones is so recent, it is difficult to find guidance from the “founding era” on the issue of whether to permit searches of cell phones incident to a person’s arrest. Therefore, the Court began “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”

The legitimate government interests are seen in the Chimel factors, the safety of officers and the preservation of evidence, which “are not comparable risks when the search is of digital data.” Regarding the safety of officers, once a phone is secured, the data on the phone is not a danger to anyone. Even though this was also argued about the cigarette pack found in Robinson, “unknown physical objects may always pose risks, no matter how slight, during the tense atmosphere of a custodial arrest.” However, “[n]o such unknowns exist with respect to digital data.” The officers who searched defendant Wurie’s phone ““knew exactly what they would find therein: data. They also knew that the data could not harm them.” Therefore, the first Chimel factor did not justify a warrantless search of cell phones incident to arrest. The Court reasoned that particular dangers to officers in particular cases “are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.”

The Court then turned to the second Chimel factor, the preservation of evidence. The concerns raised by the government were “two types of evidence destruction unique to digital data— remote wiping and data encryption.” The Court reasoned that neither concern was prevalent. Even if remote wiping was prevalent, because the first task during an arrest is to secure the individual, it is likely that if a phone’s data were to be wiped, there would be sufficient time during the arrest itself to do so. Furthermore, an officer can prevent remote wiping simply by disconnecting a phone from the network. “If “the police are truly confronted with a now or never’ situation,”” then “they may be able to rely on exigent circumstances to search the phone immediately.”

Finally, the Court balanced the issue of an individual’s privacy. “Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself.” A pat down incident to arrest is a minor intrusion on an individual’s privacy compared with taking the arrestee into custody. However, “[n]ot every search “is acceptable solely because a person is in custody.””   For example, the arrest in Chimel did not justify the search of the arrestee’s house. The Court rejected the government’s argument that cell phones were “materially indistinguishable” from other personal items kept on an arrestee’s person. The great majority of Americans own and carry cell phones which “place vast quantities of personal information literally in the hands of individuals.” The data contained in a cell phone is both quantitatively and substantively different than other physical records a person might carry on them. The Court concluded that “[a] search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.”

The Court found that there was no way to extend the Gant exception to cell phones so as to permit a cell phone search when it was “reasonable to believe that the phone contains evidence of the crime of arrest,” since this would provide “no practical limit at all when it comes to cell phone searches.” The Court also rejected the suggestion that officers be able to search certain areas of the phone “where an officer reasonably believes that information relevant to the crime, the arrestee’s identity, or officer safety will be discovered” since this also would “impose few meaningful constraints on officers.” The government suggested that they be allowed to search a phone’s call log. The Court rejected this suggestion since “call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case.” The government also suggested that they be allowed to search cell phone data which would have a pre-digital counterpart, but the Court rejected this as well because the quantity and variety of data available is vastly different.

Therefore, the Court refused to extend the general Robinson rule to permit warrantless searches of cell phones incident to arrest and held that officers must generally obtain a warrant for such a search. The Court recognized that their

decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

However, the Court noted that the advanced technology might also help to increase the efficiency of the process of obtaining a warrant. Finally, a warrantless search might still be reasonable under the exigent circumstances exception.

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