Constitutional Limits to Cell Phone Searches Incident to Arrest

The Fourth Amendment of the U.S. Constitution protects citizens from unlawful searches and seizures by the government. Under the Fourth Amendment, a warrant is generally required for a search and seizure to be reasonable, although subsequent Fourth Amendment jurisprudence has established limited exceptions to the warrant requirement, including the search incident to arrest exception.

In 2014, the U.S. Supreme Court addressed two cases, Riley v. California and United States v. Wurie, dealing with cell phones searches and the search incident to arrest exception to the warrant requirement.

In its analysis of the propriety of the search, the Court discussed the specific rules that apply when police search items that are on, or near, a person when they are being arrested. During searches incident to arrest, the high court has not required warrants under certain circumstances where protecting officer safety and preventing evidence destruction are at issue. Under Chimel v California, a search incident to arrest is limited to the arrestee's person and the area within the arrestee's immediate control. In United States v. Robinson, the Court applied the rule of Chimel and found the warrantless search of the arrestee's cigarette pack (that was in the arrestee's pocket and contained heroin) to be reasonable. The officer was entitled to search not only defendant's person, but also a physical object found on his person. In Arizona v. Gant, the Court concluded that searches of a car are permitted where the arrestee is unsecured and within reaching distance of the passenger compartment, or where it is reasonable that evidence of the crime of arrest might be found in the car.

How do these established search incident to arrest guidelines apply to a cell phone found on a person? Is a cell phone like a cigarette pack? Or is it different?

In both Riley v. California and United States v. Wurie, the police arrested the defendants, and during a search incident to that arrest, the police seized each defendant's cell phone that was located on their person. Evidence of gang and weapons activity was discovered on Riley's phone, after police looked through text, photographs, and videos. In Wurie, police searched the defendant's phone finding he had received multiple calls from "my house." They accessed the call log, traced it to the defendant's apartment, and then searched the apartment, finding drugs and firearms. Both defendants were convicted. The California Court of Appeals upheld Riley's conviction, but the First Circuit Court of Appeals overturned Wurie's conviction.

The U.S. Supreme Court heard both cases together, and in a 9-0 opinion, held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Digital Data is Different

Writing for the court, Chief Justice Roberts weighed the degree of intrusion on an individual's privacy against the need for the promotion of legitimate governmental interests. Although the risk of harm to officers and destruction of evidence are present in all custodial arrests, Roberts concluded that these risks are not a concern with digital data on a cell phone. Digital data does not present a risk of harm to an officer, nor help an arrestee to escape. Officers can of course ensure that the cell phone cannot be used as a weapon, but once the phone is physically secured, the digital data itself does not endanger anyone. The Court was also not persuaded that the loss of evidence risk was implicated. Once secured, there is no longer a risk that the arrestee will delete information from the cell phone. The government was also unable to establish that remote wiping or data encryption were a prevalent problem, or that other technologies could not be used to address these concerns.

On the other hand, the intrusion on an individual's privacy is substantial. Unlike physical items, a cell phone can store millions of pages of text, thousands of photographs or hundreds of videos. The term "cell phone" may in fact be a misnomer, wrote Roberts. "They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." As a result, the information is far more pervasive than any physical item would be. Further complicating matters is that data on a cell phone may be stored elsewhere, such as in the cloud, which would render the search far more expansive than originally contemplated by the officer.

Citing a Pew Research Study that found that 90% of Americans owned cell phones, this is also an issue that officers are likely to encounter frequently.

For all of these reasons, the Court concluded that the privacy interests involved clearly outweigh any governmental interests, such that a warrant will generally be required to search digital information on an arrestee's cell phone.

Exigent Circumstances Exception Still Applies

Importantly, other exceptions to the warrant requirement remain in full force. The Court specifically left open the possibility that the exigent circumstance exception could apply to a cell phone search on a case-by-case basis. In determining whether an exigency exists, the Court will look to the totality of the circumstances.

Get a Warrant

The Court stressed that cell phones can indeed be searched -- officers must generally just obtain a warrant first.