After seizing a cell phone incident to arrest, get a warrant prior to searching it!
The Supreme Court of the United States recently examined how the search incident to arrest doctrine applies to modern cell phones. The Court noted that cell phones are “a pervasive and insistent part of daily life.”
In reaching its decision, the Court weighed the degree to which such a search intrudes on an individual’s right to privacy against the degree to which it is needed to promote legitimate governmental interests. The Court determined that the interest in protecting an officers’ safety did not justify dispensing with the warrant requirement for searches of cell phone data, nor did the interest in preventing destruction of evidence justify dispensing with the warrant requirement for searches of cell phone data. Accordingly, the Supreme Court held that a law enforcement officer must obtain a search warrant before searching a cell phone that is seized incident to arrest, except under limited exigent circumstances. Riley v. California, --- S.Ct. ----, 14 Cal. Daily Op. Serv. 7045, 2014 Daily Journal D.A.R. 8220, 24 Fla. L. Weekly Fed. S 921, U.S.Cal., June 25, 2014 (NO. 13-212, 13-132).
For law enforcement officers, this decision means that a law enforcement officer may still seize a cell phone during a search incident to arrest and the officer may secure the cell phone in order to prevent the destruction of evidence. In addition, for officer safety, prior to getting a search warrant, the officer may inspect the phone to see if there is any physical threat, such as a razor blade between the phone and the case.
However, before searching the phone’s digital data, the officer must either obtain a warrant or satisfy an exception to the warrant requirement, such as showing that there was an exigent circumstance. Exigent circumstances will be very limited because they will require that an officer demonstrate that he was faced with a ‘now or never’ situation, such as a circumstance where the arrestee’s cell phone was the target of an imminent remote-wipe attempt.
The Court concluded that, once a law enforcement officer has secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone. The Court acknowledged that there are additional forms of destruction unique to digital data, such as remote wiping and data encryption, and offered some suggestions. Law enforcement officers can fully prevent remote wiping by disconnecting the phone from the network, which can be done by either turning off the phone or removing the battery. Law enforcement can prevent encryption or other potential problems by leaving the phone powered in an enclosure that isolates the phone from radio waves, known as a “Faraday bag.”
In light of this recent decision, law enforcement officers must obtain a warrant to search the digital data contained within a cell phone, with limited exceptions. After seizing the phone, the officer should take appropriate actions to ensure that digital data from the phone is not destroyed via methods such as remote wiping or data encryption.
This article is not to be considered legal advice. Please consult your police legal advisor regarding any legal issue.
Sherri Bevan Walsh
Summit County Prosecuting Attorney