Supreme Court to Decide if Police Can Search Cell Phones

, New York Law Journal


Christopher Dunn
Christopher Dunn

In light of Edward Snowden's dramatic revelations about the federal government's sweeping collection of information about the telephone calls we make, the emails we send, and the social media we use, the very notion of communications privacy is bordering on quaint naivete. Yet, things can always get worse, and the U.S. Supreme Court recently took two cases that threaten to do just that.

On Jan. 17 the court decided to take on the question whether law enforcement officials need a warrant to search the cell phone of a person who has been arrested. Lower courts have split on the issue, with the majority holding that no warrant is required. If the Supreme Court were to adopt that position, that would mean that even minor infractions—such as driving with expired license plates, the underlying offense in one of the cases the court accepted—would open the door to police officers freely exploring arrestee smartphones to read emails, peruse photographs, examine social media postings, track browsing histories, examine financial data, and much more.

Whether to allow warrantless police searches into the inner world of smartphones sets up a direct conflict between the Supreme Court's long-standing endorsement of unbridled police searches of arrestee property and a decision two years ago in which five members of the court recognized the highly intrusive nature of GPS tracking of criminal defendants. Given this conflict, the court's resolution of the cell phone search issue may be an important signal of its willingness to factor technological changes into constitutional jurisprudence.

Searching Arrestee Property

As noted in the two rulings headed to the Supreme Court, the court's search-incident-to-arrest doctrine dates back to its 1969 decision in Chimel v. California.1 There, in holding that the arrest of a person did not allow a warrantless search of his or her home, the court stated that arresting officers could without a warrant "search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction" and to search "the area into which an arrestee might reach in order to grab a weapon or evidentiary items."

Four years later the court, in a case involving the arrest of a person for driving with a revoked license, held that officers were free to remove a cigarette pack from an arrestee's pocket and then open it (at which point the officers found 14 capsules of heroin).2 According to the court, officers have the authority to conduct "a full search of the person" incident to a lawful arrest.

One year later the court upheld the police seizure of a burglary suspect's clothing as being justified by a legitimate interest in preserving evidence.3 According to the court, once it became apparent the clothes might have evidentiary value, "the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of a crime when it is lawfully encountered."

In 1977 the court took a step back, finding impermissible the search of a footlocker that an arrestee had loaded into the trunk of his car and that had remained in the control of the arresting officers for 90 minutes after the arrest.4 In those circumstances, the court held that the search could not "be viewed as incidental to the arrest or as justified by any other exigency."

Rounding out this area is a 2009 decision in which the court addressed the search of a vehicle following an arrest.5 In that case, the court granted officers broad authority to search vehicles incident to a lawful arrest "when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search."

Cell Phone Searches

The two courts whose decisions are headed to the Supreme Court split on the issue of cell-phone warrants, with a California intermediate appeals court holding that no warrant was required while the U.S. Court of Appeals for the First Circuit held that a warrant was needed. The rulings reflect very different approaches to the issue.

In People v. Riley,6 the defendant was stopped in San Diego for having expired license plates and then found to have a suspended license. Following department policy, the officers impounded Riley's car and then, pursuant to broad authority to search impounded vehicles, found weapons hidden in the engine compartment. They arrested Riley and then searched his cell phone without a warrant, locating call records and photographs that connected him to a gang-related shooting.

After his conviction, Riley challenged the warrantless search of his cell phone. In a February 2013 decision, the California appeals court rejected that out of hand, relying on a 2011 decision from the California Supreme Court holding that no warrant was required to search the cell phone of an arrestee. In that earlier decision (which the U.S. Supreme Court had declined to review), the California Supreme Court engaged in a doctrinally formulaic analysis, reasoning that the U.S. Supreme Court had generally held that arrestee property could be searched as part of an arrest, that a cell phone was arrestee property, and that the fact that cell phone searches could be highly invasive of personal information was of no consequence.7 In the course of that analysis, the California Supreme Court touched on an evidence-preservation issue that may play a significant role in the Supreme Court's deliberations:

Given our conclusion, we need not address the People's argument that an exigency existed because a cell phone's contents "are dynamic in nature and subject to change without warning—by the replacement of old data with new incoming calls or messages; by a mistaken push of a button; by the loss of power; by a person contacting the cellular phone provider; or by a person pre-selecting the 'cleanup' function on the cellular phone, which limits the length of time messages are stored before they are automatically deleted." We note, however, that the People have offered no evidence to support this claim. Nor have they offered evidence as to whether text messages deleted from a cell phone may be obtained from the cell phone's provider.

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