June 25, 2014
Re: Important Decision on Police Search of Cell Phones
The United States Supreme Court today issued an important decision concerning whether the police may, without a warrant, search digital information on a cell phone seized from an individual who had been arrested. The decision, Riley v. California, dealt with the search of cell phones incident to arrest in two separate, but similar, incidents. The police, on both occasions, arrested an individual, searched their cell phone, and used information found on the phone to discover further evidence which led to both defendants being charged with more serious crimes.
The Court held that police officers must obtain a warrant before conducting a search of these cell phones. The fourth amendment of the United States Constitution ensures the “right of the people to be secure...against unreasonable searches and seizures...” Compliance with the “reasonableness” standard of the fourth amendment has generally been determined by the Supreme Court to require the obtaining of a warrant. There is however an exception for searches incident to arrest. In United States v. Robinson, the Court held that police officers can conduct searches of an individual, incident to arrest, to protect the police officers’ safety and preserve evidence.
In today’s decision the Court held that the Robinson exception does extend to searching digital information on cell phones and therefore a warrant is required. In declining to extend this rule the Court cited the vast amount of personal data on modern cell phones, such as photos, reading materials, emails, GPS data, apps etc. The Court was clear to indicate that police officers “must remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case.” The Court also addressed a concern with wiping, that is, the destruction of phone data remotely. The decision suggests two solutions to this potential problem. First, police officers can turn the phone off or remove its battery. Second, they can put the phone in a “faraday bag,” which is an aluminum bag that isolates the phone from radio waves.
We recommend that you discuss this decision with your municipal attorney and police chief or public safety director.
If you have any questions, please contact Ed Purcell Esq. at (609) 695-3481 x137.
Very Truly Yours,
William G. Dressel