*SCOTUS holds that cell phones may not be searched incident to arrest absent exigent circumstances or a warrant.*
Riley Facts: Riley was pulled over for expired tags. The officer soon learned that he also had a suspended license. The vehicle was impounded. The vehicle was searched pursuant to inventory, when concealed and loaded firearms were found. Riley was arrested, and searched (incident to arrest). The officer searched Riley and found items associated with the “Bloods” street gang. His cell phone was seized and the officer found names preceded by the letters CK (presumably in text messages or contact lists). “CK” the officer believed to stand for “Crip Killer.” Back at the station a gang detective further examined the phone, and found a photo of Riley standing next to a car they suspected had been involved in a shooting a few weeks earlier. Riley was charged in connection with that shooting among some of his charges. Riley was convicted and received an enhanced sentence of 15 to life.
Wurie Facts: An Officer observed Wurie making an apparent drug sale from his car. He was subsequently arrested and taken to the station. There, officers seized two cell phones from Wurie. One was a “flip phone.” That phone was repeatedly receiving calls while Wurie was at the station from “my house.” Police opened the phone and noticed that the wallpaper was a woman with a baby. They opened the phone, accessed the call log to find the number associated with “my house.” An online directory was used to trace the phone number to an apartment. At the apartment, a woman who resembled the phone’s wallpaper was observed. The house was secured pending a search warrant. Upon execution of the warrant, 215 g of crack cocaine, marijuana, drug paraphernalia, and a firearm with ammunition was seized (along with cash). At trial, on charges connected with the observed drug deal and the evidence found during the search, Wurie was convicted and sentenced to 262 months. He was also charged and convicted of being a felon in possession of a firearm and ammunition.
Procedural Posture: Both Riley and Wurie moved to suppress the evidence seized; both lost their motions. For Riley, the California Court of Appeals relied on California Supreme Court decision People v. Diaz, 51 Cal. 4th 84, 244 P.3d 501(2011), permitting a warrantless search of cell phone data incident to arrest, so long as the phone was immediately associated with the arrestee’s person. For Wurie, the First Circuit reversed the denial of his motion to suppress and vacated his convictions. The court held that cell phones are distinct from other physical possessions that may be searched incident to arrest without a warrant, because of the amount of personal data cell phones contain and the negligible threat they post to law enforcement interests.
Issue: Whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.
Law: “The ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). The general rule requires the obtaining of a search warrant. “In the absence of a search warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement. Kentucky v. King, 563 U.S. __,__(2011)(slip op., at 5-6).
For nearly 100 years, the Supreme Court has recognized the search incident to arrest exception as being an important tool for law enforcement officers to first, protect themselves from weapons or escape, and second, to search and seize evidence on or immediately near an arrestee to prevent its concealment or destruction. Weeks v. United States, 232 U.S. 383, 392 (1914). While the exception has been long recognized, it has also been limited over the years.
Chimel v. California, 395 U.S. 752 (1969)- Arrested in his home, police searched his entire house, garage, and attic. The search was found to be unreasonable to protect officer safety or to preserve evidence. “There is ample justification…for a search of the arrestee’s person and the area ‘within his immediate control.’” (wingspan-where he might gain possession of a weapon or destructible evidence).
United States v. Robinson, 414 U.S. 218 (1973)- Chimel analysis was applied to the search of an arrestee’s person. During a patdown search, an officer felt an object he could not identify in Robinson’s coat pocket. The item was a crumpled cigarette package. The officer opened the package and found 14 capsules of heroin. Though the court of appeals concluded the search was unreasonable because Robinson was unlikely to have evidence of the crime of arrest (driving with revoked license) on his person, and because it believed that opening the cigarette package could not be justified as part of a protective search for weapons. SCOTUS reversed the lower court, rejecting the notion that “case-by-base adjudication” was required to determine “whether or not there was present one of the reasons supporting the authority for a search of the person incident to lawful arrest.” Id., at 220, 223. The Court ultimately held “the authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Ibid. this meant that during a lawful search, the officer was entitled to inspect the cigarette package.
Finally, U.S. v. Gant analyzed search incident to arrest with respect to an arrestee’s vehicle. Chimel concerns for officer safety and evidence preservation authorized police to search a vehicle “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U.S. 338. Gant added an independent exception for a warrantless search of a vehicle’s passenger compartment “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Id. at 343.
Analysis: A strict Robinson application would probably support the warrantless search of the cell phone. However, Robinson was concerned with physical objects, not digital content. “Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.”
Focusing on the second Chimel rationale: prevention of destruction of evidence; the U.S. and California advance arguments about remote wiping and data encryption. The Court dismissed both arguments saying that with respect to the capability of remote wiping, “we have…been given little reason to believe that…problem is prevalent.” With respect to data encryption, the Court held “opportunities to search a password-protected phone before data becomes encrypted are quite limited. Law enforcement officers are very unlikely to come upon such a phone in an unlocked state because most phones lock as the touch of a button…”
Law enforcement is not entirely without protection measures however. The use of special “Faraday” bags to prevent radio waves from reaching phones is fairly common place.
Holding: Officers must generally secure a warrant before conducting a search. The Court held that while a law enforcement officer can physically examine the phone upon arrest for potential physical threats such as a “razor blade hidden between the phone and its case,” once the phone is seized the “data on the phone can endanger no one.” Recognizing the apparent contradiction with Robinson, the Court distinguished Robinson by saying “unknown physical objects may always pose risks, no matter how slight, during the tense atmosphere of a custodial arrest.”
Practitioner Notes: The Justices recognize the probable consequences of this decision, stating “[w]e cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Privacy comes at a cost.” They leave open, possible scenarios meeting the exigent circumstances exception. Although this seems to contradict the Robinson Court’s distaste for “case-by-case adjudication.”