Update: Cellphones are not subject to warrantless searches

In June, 2014, the United States Supreme Court decided in Riley v. California that cellphones may not be seized by police during the arrest process and their contents searched without first obtaining a warrant. While there is an exception available to police, usually there is no reason why law enforcement cannot wait for a warrant before searching a cellphone during these custodial searches.

Facts before the Court

The first defendant was stopped for a traffic infraction, leading to his arrest for a weapons charge. Upon his custodial search, the police examined his smartphone and, based partially on photographs and videos therein, charged the defendant with gang-related activities, seeking an enhanced sentence.

The second defendant was arrested pursuant to his participation in a drug sale. Upon his custodial search, his flip phone was seized and a review of his phone log led to the identification of his home address. After a warrant was then obtained, drugs and weapons were found, leading to charges therefor.

Warrantless custodial searches, generally

Generally, warrantless searches of those in police custody are limited to that property on the person or near him or her-meaning within his or her control-for the purpose of the safety of the law enforcement officer and the safety of the person arrested, and preventing the destruction of evidence. Later, this rule was extended to permit warrantless searches of cars where the person to be arrested is unsecured and can reach the passenger compartment or where evidence of the crime of the arrest may reasonably be found in the car.

Welcome to the 21st Century

The Supreme Court first addressed whether data contained on either a flip phone or a smart phone would pose a risk to either law enforcement officers or to arrestees. The Court decided that the data itself cannot be used to help a prisoner escape. The cellphone itself can be examined physically, but not the data it contains without first obtaining a warrant, absent the application of fact-specific exceptions. As to the possibility of the destruction of evidence, the Court addressed that while there were possibilities that a wiping of the cellphone's data could be done at a distance, law enforcement could easily prevent that by taking simple measures as, for example, simply removing the battery.

The Court then addressed the privacy issues before it. Cellphones have grown in recent years from simple communication devices to, in effect, portable computers containing massive amounts of personal data themselves and direct portals to even more data contained in the Cloud. The Court noted that over nine in ten Americans hold on their bodies a digital record of practically all aspects of their lives. A warrantless search, however well-meaning, could not foreclose law enforcement from following threads into every aspect of an arrestee's life in their search for evidence of crime.

Warrant required, except on case-by-case basis

In order to balance this privacy interest, the Court decided that law enforcement must obtain a warrant to search for digital data. Indeed, the Court noted that technological developments have made obtaining warrants less onerous than in previous years.

However, exceptions to warrants still exist, although on a case-by-case basis. The exigent circumstances exception applies to the warrant requirement, such as to prevent the imminent destruction of evidence or to help people who are seriously injured or threatened with seriously injury.

Conclusion

If you feel that you have been subjected to an unlawful search and seizure, contact an attorney experienced in criminal law to make sure that your rights are protected.

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