How many of us have admitted that our phone is our life? Well, on June 25, 2014, the United States Supreme Court agreed, and, relying on that phrase, held that search of a cell phone generally requires a warrant. See Riley v. California, June 25, 2014, 573 U.S. ____ (June 25, 2014).
The Riley decision involves appeal in two related cases. First, in Riley v. California, David Riley was stopped for having an expired registration, and in the course of the stop, the officers learned his driver’s license had been suspended. The officer impounded the vehicle, according to department policy. In the course of another officer’s inventory search of the car, the officer found two concealed and loaded handguns. Riley was then arrested for possession of concealed and loaded firearms. When the officer searched Riley, properly, incident to the arrest, he seized a smart phone from Riley’s pants pocket. The officer accessed information on the phone, and saw photographs and videos which indicated Riley was a member of the “Bloods” street gang. Contacts also had initials by them, indicating membership in the gang. More importantly, officers saw a photograph of Riley standing in front of a vehicle that police believed was connected to a drive-by shooting. Based on those photographs, at least in part, Riley was arrested for, and convicted of, firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder. His sentence was enhanced because he was convicted of committing those crimes for the benefit of a criminal street gang. Riley moved to exclude the cell phone evidence, but the motion was denied, and the California Supreme Court affirmed that denial.
In the second case, United States v. Wurie, Brima Wurie was observed making a suspected drug sale from his vehicle. When he was taken to the police station after being arrested, officers confiscated two “flip phones”. Shortly after arriving at the station, one of the phones began repeatedly ringing from a number identified as “my house.” The officers opened the phone and saw a photograph of a woman and child on the wallpaper. Officers pressed two buttons only, and were able to obtain the phone number for “my house.” Using an on-line directory, the officers found the associated physical address and went to the apartment building. Officers secured the apartment and waited for a warrant to search it. In searching, they located crack cocaine, firearms, and ammunition. Wurie moved to exclude the evidence found in the search because it was obtained by a warrantless search of the cell phone. The district court denied the motion, but the First Circuit Court of Appeals reversed.
The Court analyzed the question of whether a warrant was necessary before a search of cell phone data takes place using much of its previous case law discussing searches incidental to arrest, including Chimel v. California, 395 U.S. 752 (1969); United States v. Robinson, 414 U.S. 218 (1973); and Arizona v. Gant, 556 U.S. 332 (2009). After a review of those cases, the types of searches involved in them, and the principles regarding warrantless searches, the Court stated, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”
The Court began its analysis by reviewing that familiar case law to remind everyone of the purposes for the exception to the rule stated in the Fourth Amendment requiring warrants – officer protection and to prevent the destruction of evidence. Looking at data within the cell phone did not meet either of those purposes. Data itself does not constitute a weapon. (However, the Court noted the officer may search the physical aspects of a phone to ensure no hidden razors or weapons are present to ensure the item itself does not constitute a weapon.)
The Court also recognized that destruction of data could, conceivably, be a concern. Once officers take possession of the cell phone, though, the suspect/arrestee has no more ability to delete incriminating data. Additionally, if officers have a reasonable and legitimate concern that someone else may remotely wipe date from the phone, once the officer properly takes physical possession of the cell phone (for instance, as property inventoried after an arrest), the officer can remove the battery from the phone or take other steps to prevent a remote wipe of data, including use of a “Farady bag” in which to place the phone.
The Court stated that “exigent circumstances” could still be applied, if such existed, to search data. “To the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.” Exigent circumstances can include situations in which “police are truly confronted with a ‘now or never’ situation,’ – for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt.’” Also, if data from a phone is needed to assist persons who are seriously injured or are threatened with imminent injury, the exigent circumstances exception would apply. One example used was the potential of a remotely accessed bomb. Officers must ensure, though, that the circumstances are objectively reasonable under the Fourth Amendment.
Additionally, the Court found that cell phones contain an implicit concern of privacy, far beyond a cigarette pack in a pocket (Robinson) or even a car, wallet, or purse, both because of the amount of data that can be contained on them and because of the type of personal data (health information; banking records; telephone records; photographs; location tracking information) that is routinely stored in a cell phone. The court analogized the search of a cell phone to the search of a house, stating “a cell phone search would typically expose to the government far more than the most exhaustive search of a house[.]” (emphasis in original). The Court also noted that it is difficult to tell what information is stored directly on the phone, as opposed to “in the cloud.” Under no circumstance could a search of data “in the cloud” be done without a warrant. Therefore, searching data on a cell phone could not be done without the potential violation.
Finally, the Court issued its decision, noting its preference to provide clear guidance to law enforcement. However, the Court emphasized that this holding was not that data on phones was immune from search. Instead, a warrant is generally required before the search of a cell phone, even if seized incident to arrest.
As a training tool, this case is helpful. First, it gives a clear-cut rule officers should find easy to follow. Additionally, its review of how various cases should be applied provides guidance for training officers on the extent to which searches incident to arrest can be performed. Finally, rather than a three- or four-part test, we have a simple rule. While some people may not like it, the rule is clear and easy to follow. Get the phone. Hang onto it. Get a warrant.
Stacy Moon is a shareholder at F&B Law Firm PC in Huntsville, Alabama, where she practices in the areas of municipal liability, employment law, commercial litigation, construction litigation, and personal injury defense. She is a past chair of the DRI Lawyers’ Professionalism and Ethics Committee and also active in the DRI Law Practice Management, Employment Law, Commercial Litigation, Governmental Liability, and Construction Law Committees.