Cell Phones: Password Protected And Now Warrant Protected

Major Privacy Ruling – Cell Phones and Unreasonable Search

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

News Flash:—— United States v. Wurie and Riley v. California. The U.S. Supreme Court decided two landmark cases on June 25, 2014 for anyone who gets arrested with a cell phone on them. One case arose out of an incident in which the petitioner, Riley, was pulled over for a traffic violation. The officer confiscated his cell phone and went through media stored on the phone that suggested he was affiliated with a gang which ultimately connected him to a shooting. This led to a more extensive search that ultimately landed Riley with weapons charges.

The second indecent involved respondent, Wurie who was arrested after police observed him allegedly engaged in a drug sale. Upon arrest they took his phone and noticed repeat calls from a number saved as “my house.” They tracked the number to Wurie’s apartment and seized narcotics that were later used against him as evidence. The question in both of these cases is whether viewing information off of a cell phone without a warrant is an unreasonable search and thus a violation of Fourth Amendment rights.

The Supreme Court unanimously answered in the affirmative holding that in most cases a warrant will be necessary in order to go through someone’s cell phone. The Court held that this is because people place information about their entire life, much of it personal, on their smart phones. While not allowing police to view cell phones without a warrant may curtail some police work, it is a cost that must be paid in order to protect privacy. However, the Court pointed out that in certain extreme situations exigency would apply and allow officers to bypass the warrant. Two hypothetical examples were in the case of a real bomb threat, or a kidnapped child, both of which would be situations where time was of the essence.

But the exigency exception is more restrictive than the “search incident to arrest” exception. Unlike the hypothetical exigent circumstances, the routine police work of traffic stops and drug crimes, like that in the two cases that were presented to the Court, police can no longer use your phone against you without getting judicial approval. While it is legal to search a defendant’s pockets when he is arrested, even if not his car or home (depending on the circumstances) this does not extend to the cell phone, simply because it may be on his person. Cell phones are distinctly different from other objects because they do not contain evidence that is limited to the moment of the arrest, such as a marijuana pipe, but they may have pictures and texts that go back years in time. Law enforcement fears that this decision could allow evidence to be lost forever through remote disposal of texts and media as well as activation of encryption. But the average defendant who is arrested does not have the ability to remotely destroy files or initiate encryption.

Chimel v. California was a famous Supreme Court case that established two justifications for conducting a warrantless search during an arrest, officer safety and risk of losing evidence. The Chimel justifications render a search of a vehicle or room incident to arrest unconstitutional if a warrant was not obtained when it was possible and practical to do so. It is very difficult to conceive that searching through a defendant’s cell phone would increase officer safety the way searching for weapons might, nor is it likely the info will be lost once the defendant is in custody. The Court ends the opinion unusually straightforward “our answer to the question of what police must do before searching a cell phone seized incident to an arrest is according simply–get a warrant”