The United States Supreme Court unanimously ruled that the search incident to arrest of an arrestee’s cell phone is not permissible without a warrant — except in specific emergency circumstances such as “child abduction and the threat of bombs being detonated.”
The ruling addressed two separate cases — Riley v. California and U.S. v. Wurie — with each matter involving defendants whose cell phones were searched incident to arrest. Those searches subsequently led to both Riley and Wurie being charged and convicted.
In addition to the obvious — that departments put out an immediate legal bulletin notifying officers of the decision and offering a brief explanation of its ramifications — what does today’s ruling on cell phone searches mean for police officers patrolling the streets? From a read of the Court’s opinion, and following discussions with several experts on legal issues, I have three observations to share. Add your own thoughts in the comments area below.
Slowing, Not Stopping, Investigative Process
In the decision, Chief Justice John Roberts wrote, “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime.”
The decision stated that while cell phones “have become important tools in facilitating coordination and communication among members of criminal enterprises” and have the potential to “provide valuable incriminating information about dangerous criminals,” the devices are so powerful and contain so much personal information that they fall under the protection of the Fourth Amendment.
“Privacy,” Justice Roberts wrote, “comes at a cost.”
But does the ruling — clearly resounding ‘win’ for proponents of digital and personal privacy — significantly hamper law enforcement? Yes and no (mostly no).
Observation #1: In exigent circumstances such as immediate officer safety or the safety of innocent persons (per SCOTUS, child abduction, bomb threat), officers can conduct a search and be prepared explain those actions later in court
According to Lance LoRusso, a former law enforcement officer and author of the book, When Cops Kill: The Aftermath of a Critical Incident, the ruling does little to truly hamper law enforcement efforts.
“Like other questions resolved by the Court, this was an open question with a split among the federal circuits and the state supreme courts. The delay in getting the search warrant will not likely impair the ability of LEOs to do their jobs,” LoRusso told Police1.
Police1 Contributor Morris Greenberg added, “This decision doesn’t preclude law enforcement of seizing a cell phone as evidence — it only precludes a warrantless search absent exigent circumstance. If articulable exigency exists, law enforcement can still search the phone without a warrant. Officers must then, of course, be prepared to defend that search in court.”
“The bigger question is if the exceptions to the search warrant rule — such as exigent circumstances — will apply. As the Court stated, ‘Accordingly, the interest in protecting officer safety does not justify dispensing with the warrant requirement across the board. 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’,” LoRusso told Police1.
Roberts wrote that “once an officer has secured a phone and eliminated any potential physical threats...data on the phone can endanger no one.”
With the question of immediacy — and exigent circumstances — addressed, the most obvious ramification is that patrol officers must now decide if there is a reason to retain a cellphone to allow time to obtain a search warrant.
If the answer to that question is yes, they then must invest the time to stop and write the search warrant — if an investigative unit exists within a police agency, they should be called on to assist patrol in facilitating the warrant.
All of this, of course, takes time.
Observations #2: Taking the time to get a search warrant for a cell phone not only protects personal privacy, but ultimately also serves to ensure that an officer’s search of a subject’s phone is not tossed out on a ‘technicality’
“The big thing is the timeliness of accessing the information on a phone,” Greenberg explained. “Stop and think about it, though. Most criminals are smart enough to password protect their phones, so the average officer rarely has immediate access to data on the phone to begin with. So timeliness is an issue either way.”
Greenberg said even before today’s decision, he believed that investigators should obtain search warrants to review and use the content of a cell phone.
“Why tempt fate?” Greenberg asked. “If a warrant can be written — and the evidence flowing out of that be upheld as a result of the warrant — why not do it!? Why risk losing what in so many cases is vital evidence contained within these phones — whether its contacts, call data, text messages, emails, searches, and the like? For me, this decision was not much of a game changer.”
LoRusso added that following this ruling, LEOs will apply for — and likely receive — search warrants for cell phones and smartphones.
“It is the intervention of the neutral and detached magistrate in the search warrant process that will satisfy the reasonableness standard of the Fourth Amendment,” LoRusso explained.
“Although time-consuming and putting us behind the eight ball in some cases, it is far better to have the evidence collected meet muster in court, rather than get thrown out on a ‘weak search’ technicality,” Greenberg stated.
Furthermore, as Chief Justice Roberts noted in the opinion, there is technology — email, for example — available to law enforcement which can help to expedite a search warrant in minutes.
Speaking of technology available to LEOs, as one Police1 Member commented today, manufacturers of ‘Faraday evidence bags’ are looking like a mighty appealing investment opportunity right about now.
Not Mere Pocket Litter
Under Court rulings like Chimel v. California, United States v. Robinson, United States v. Edwards, and United States v. Chadwick, searches incident to arrest were aimed at ensuring officer safety and/or safeguarding evidence from destruction or loss.
The Justice Department argued in its Court briefs that cell phones are “not materially different from wallets, purses, and address books” but there is no denying that modern mobile phones are significantly different from other “pocket litter” a subject may be carrying with them when placed under arrest and told — for both investigative and officer safety purposes — to empty their pockets.
Observation # 3: In the 21st Century, the legal system will not treat cell phones as merely phones, but as Chief Justice Roberts said, they are “a digital record of nearly every aspect of [a person’s life] — from the mundane to the intimate” that can also make phone calls
Comparing a cell phone to a crumpled cigarette pack found in arrestee’s pocket (Robinson), paint chips found on arrestee’s clothing (Edwards), or the contents of a locked footlocker (Chadwick) is preposterous on its face. The typical smartphone has vastly more computing power than all of NASA’s computers combined when Apollo 11 landed on the moon in 45 years ago, and Moore’s Law states that this time next year, those phones will be exponentially more powerful.
Further, as Justice Roberts quipped in today’s decision, cell phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
Chief Justice Roberts wrote, “One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy... Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read — nor would they have any reason to attempt to do so.”
Roberts concluded, “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life...’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.
“Our answer,” wrote Roberts, “to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”
