Police Must Have a Warrant to Search a Cell Phone

by Professor Byron L. Warnken on July 5, 2014

For 40 years, the Supreme Court’s jurisprudence has been strongly pro-government on issues of Fourth Amendment search and seizure.  On June 25, 2014, in Riley v. California, 2014 WL 2864483, the Supreme Court ruled 9-to-0 in favor of the Defendant in two companion “cell phone” cases.

Background

To comply with the Fourth Amendment, police must conduct searches and seizures (1) with a search warrant issued by a neutral and detached magistrate; or (2) pursuant to one of the judicially recognized exceptions to the warrant requirement.  One exception to the warrant requirement is “search incident to a lawful arrest,” which was recognized by the Supreme Court in Chimel v. California, 395 U.S. 752 (1969).  Over the years, the “search incident to a lawful arrest” exception has been the most pro-prosecution exception to the warrant requirement.  The predicate to this exception is a valid underlying arrest, in which the officer (1) arrests pursuant to a validly issued arrest warrant, or (2) arrests based on probable cause to believe the arrestee is about to commit, is committing a crime, or has just committed a crime.

The rationale for the search incident exception is the need for the arresting officer to (1) seize weapons that the arrestee could use to harm the officer or other innocent persons, or (2) prevent the arrestee from destroying evidence of the crime for which arrested.  The search incident exception permits the arresting officer to seize such items if they are within the area of the arrestee’s immediate control, i.e., his lunge, reach, or grasp.

By the 1970’s, the search incident exception had outlived the rationale that created that exception.  This means that courts did not really examine whether the arrestee could actually reach the weapons or the evidence that the arresting officer seized.  Search incident was generally applied per se in favor of the prosecution.  In the context of a person arrested in a vehicle, the Supreme Court was likewise pro-prosecution.  In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court expanded the search incident exception, in the context of a vehicle, by holding that everything in the interior of a vehicle is within the lunge, reach, and grasp of the arrestee, even though, by the time of the search, the arrestee would have been arrested and removed from the vehicle.

First in Arizona v. Gant, 556 U.S. 332 (2009), and now in Riley, the Supreme Court has taken away from police the carte blanche authority that police have generally had since 1969 under the search incident exception.  Under Gant, if a person in a vehicle is arrested, and the arrestee is not physically secured by police, police may search anywhere within the arrestee’s lunge, reach, and grasp.  If, on the other hand, as in Gant, the arrestee has been taken from his vehicle, has been handcuffed, and has been secured in a police vehicle, such that it is unrealistic for the arrestee to obtain weapons or evidence, police may not conduct a search incident in the interior of his vehicle.

 

Riley v. California & United States v. Wurie

In Riley, a state case from California, police stopped Defendant for a traffic violation.  By the conclusion of the stop, Defendant was arrested on a weapons charge.  Once police arrested Defendant, police conducted a search incident to a lawful arrest.  The search incident produced a cell phone in Defendant’s pants pocket, which police seized.  The arresting officer accessed information on the cell phone and noticed, on the cell phone, there was repeated use of a term associated with a street gang.  Two hours later, at the police station, a detective, whose specialty is gang activity, examined the cell phone’s digital content.  Based on the information found in the cell phone, police connected Defendant with a shooting and sought enhanced sentencing based on gang membership.  Following denial of Defendant’s motion to suppress, he was convicted, which was affirmed by the state appellate court.  The Supreme Court granted certiorari to Riley.

The companion case in the Supreme Court, Wurie, was a federal case.  Police arrested Defendant, having observed him participate in a drug transaction.  At the station, police seized Defendant’s cell phone and saw that it had received multiple calls from a source identified as “my house.”  Police opened the cell phone, accessed the phone’s call log, determined the phone number associated with the “my house” label, and traced the phone number to what police believed was Defendant’s apartment.  Police obtained a search and seizure warrant for the apartment, where they found drugs, a firearm, ammunition, and cash.  Defendant was charged with drug and firearm offenses.  Following denial of Defendant’s motion to suppress, he was convicted.  The First Circuit reversed his conviction.  The Supreme Court granted certiorari to the Government.

In Riley (and its companion case), the Supreme Court held that generally, without a search and seizure warrant, police are prohibited from searching the digital information on a cell phone that is seized during a search incident to a lawful arrest.  In its analysis, the Court balanced the privacy interest of the arrestee against the Government’s need for the information in the cell phone and its contents.  The Court held that (1) digital data cannot be used as a weapon or assist the arrestee in effectuating an escape, and (2) there was no reason to believe that the cell phone contained evidence of the crime for which the arrestee had been arrested, with the arrestee having the power to destroy such evidence.

The Supreme Court was particularly concerned with the substantial privacy interests at stake for the more than 90% of the population that uses cell phone containing digital data.  Cell phones have immense storage capacity, i.e., millions of pages of text, thousands of pictures, hundreds of videos, and a lifetime’s worth of banking and personal information, all of which can be maintained for years. Moreover, data accessed on the cell phone may be stored remotely.  The Court stated that cell phones are not just technological conveniences.  They hold the privacies of life.

The Court emphasized that its holding does not mean police cannot obtain information contained in a cell phone.  What it means is that police are prohibited from obtaining digital information that is contained in a cell phone unless police obtain a judicially authorized search and seizure warrant.  The Court noted, when justified, warrants are easy to obtain.  In order to obtain such a search and seizure warrant, police must have probable cause to believe that particularly named fruits, evidence, and/or instrumentalities of a crime are in the cell phone.  The Court also noted that, depending on the facts of a particular case, police may be able to make use of the “exigent circumstances” exception to the warrant requirement, meaning that there is an emergency that cannot wait for a search and seizure warrant to be obtained.

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The First Annual Update

by Professor Byron L. Warnken on June 24, 2014

I spent about 35 years completing my treatise, Maryland Criminal Procedure.  There are more than 10,000 cases, rules, and statutes.  Thankfully, I had someone else complete those massive tables.

After 35 years to get the first edition done, I managed to complete the first annual supplement in only one year.  Of course, I only had one year of cases, rules, and statutes to analyze.  I hope to get the second annual update done faster, but something tells me it will probably take the whole year.  I asked the Rules Committee and all 22 appellate judges if they could condense this year into ten months so I’d have a little time to bring it all together.  My request received no response.

The good news is I have made the first annual update free.  Completely free.  It can be downloaded from www.warnkenlaw.com/book.  It is a PDF and, therefore, easily searchable.  It can be saved on a desktop, printed out, or simply skimmed.  It’s best to review the supplement when the book is reviewed.  Case law, of course, is constantly tweaked and refined, if not outright overruled.  If the law you need was made or refined in 2013-2014, having the annual update on hand is important.

I have always hated adding supplement pages to legal books, and I knew I didn’t want this book to be that.  However, there are benefits to such a system.  I also knew I definitely didn’t want pocket parts, though there are benefits to that system as well.  Having a three volume, hardbound treatise, it was too expensive for the average practitioner to replace every year.  After much deliberation, with some of that deliberation coming after the initial publication, I figured if I did two or three annual supplements available as a free download in between book editions, we’d all get the best of all worlds.  Hopefully you agree.

In addition to the annual update, the book is now available as a kindle e-book in the Amazon kindle store.  The ebook edition can be taken into meetings, on the road, or in court with ease.

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Defendant Competency to Stand Trial

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