Supreme Court to Consider Arguments in Warrantless Cell Phone Search Cases

This week, the United States Supreme Court listened to arguments in two cases that could shape the way law-enforcement officers search personal cell phones for information.  As the American legal system continues to define privacy rights in a world of rapidly changing technology, the Court’s decision is expected to reconcile a wide variety of lower court opinions that have struggled to establish a consistent opinion about the limits of police authority to search the contents of private cell phones.

Fourth Amendment Protection from Warrantless Cell Phone Searches

Central to the Supreme Court’s analysis of cell phone searches is constitutional protection from over-expansive searches of private belongings by police officers.  The Fourth Amendment generally forbids law enforcement from searching or seizing personal property without first having a judge grant a warrant for the investigation.  Several years ago, the Supreme Court in Chimel v California established two exceptions that allow police to search a suspect at the time of arrest without first securing a warrant:

  1. The search is designed to discover and remove weapons that present an immediate threat to the police officer’s safety
  2. The search will prevent concealment or destruction of evidence that is “within the immediate area” of the arrested person

It is clear that cellular phones do not present a weapon of immediate harm to the police, so the question facing the Supreme Court this week is whether or not allowing a warrantless search of data on a cell phone is justifiable under Chimel to prevent an arrestee from tampering with or destroying information.

Two Cell Phone Search Cases

The two cases at issue represent the difficulty that lower courts have had in establishing a clear and consistent balance between privacy and police searches:

  • Riley v California: In 2009, David Leon Riley, was arrested under suspicion of attempted murder via a drive by shooting of rival gang members.  At the time of his arrest, police confiscated Mr. Riley’s cell phone, and searched it to obtain call records that placed him at the scene and photos that associated him with the gang suspected of the crime.  Additionally, police monitored calls he was permitted to make with the phone after his arrest, and obtained further evidence that he was present for the shooting.  After his conviction, he challenged the legality of obtaining data from his cell phone.  His challenge was overruled, and his conviction upheld.
  • United States v Wurie: During his 2007 arrest for dealing crack cocaine, two of Brima Wurie’s cell phones were seized by police and searched without a warrant.  The information on one of the phones led police to a stash-house where they secured evidence of the distribution of cocaine and marijuana.  On appeal, Wurie’s conviction was dismissed because the Boston PD had illegally obtained evidence from the cell phones without use of a warrant.  Saying that the search was not “incident to arrest” because Wurie was in custody and unable to remotely destroy evidence, the First Circuit Court of Appeals limited the authority of law-enforcement to search cell phone data without a warrant.

The approach taken by two different federal courts represents the disagreement that lower jurisdictions have had when balancing Fourth Amendment protections with the right for police to investigate data stored on cell phones. 

Cell Phone Technology to Key Supreme Court’s Decision

In making their decision, the Justices will attempt to understand whether cell phone technology makes the data stored electronically immediately critical to police investigation.  At the heart of the Chimel exception is identifying a degree of urgency in obtaining property or information from a suspect without a warrant that outweighs a constitutionally protected expectation of privacy, and it is that same principal that the Court will likely attempt to apply to cell phone data.

If the Justices determine that cell phones are repositories of personal and private information that can be secured for a later search at the time of arrest by use of a Faraday Bag – or other technology that similarly prevents electromagnetic signals from reaching the phone – then they will likely lean towards limiting the authority of police to search through a phone at the time of arrest.  However, if the Court is instead convinced by the Department of Justice that cell phones are vessels for data immediately necessary to police investigation that can easily be accessed by third parties intent on tampering with or destroying the information, than the Justices will probably allow police more power to search phones at the time of arrest without a warrant.

Given the uncertainty surrounding cell phone technology, and the uniqueness presented by each suspect and arrest, it is likely the Court will come to some sort of middle-ground determination that either permits a limited search of cell phone data, or permits a search in particular situations – allowing the Court to uphold both lower court rulings despite the different outcomes.  A middle-ground outcome is likely the best path to tread, but it is important the Justices take advantage of the cases to establish a clear rule on cell phone searches that maintains Fourth Amendment protections while allowing law-enforcement to conduct effective investigations in the digital age.

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