COME BACK WITH A WARRANT. At least, that’s what the United States Supreme Court told the government this June. In a nearly unanimous opinion (Justice Alito filed a concurrence), the highest court in the land ruled that police officers must secure a warrant before searching data on a cell phone seized from an individual who has been arrested. The Court determined that searching modern cell phones, so-called “smart phones,” could no longer be justified on traditional “search incident to arrest” grounds given the enormous amount of private information they can (and do) hold. And just like that, the Fourth Amendment was catapulted into the digital age.
The decision involved a pair of cases in which both defendants were arrested and their cell phones seized. In both instances, officers examined electronic data on the phones without a warrant as searches incident to arrest. Both defendants filed motions to suppress the evidence obtained as a fruits of the illegal cell phone searches to no avail. The men were convicted.
“Search Incident to Arrest” Trilogy
To determine whether the cell phone searches were legal, the Court analyzed whether examining personal data found in a cell phone qualifies as a legitimate “search incident to arrest” under the Chimel–Robinson–Gant trifecta. Together, these cases form the foundation upon which much of the exception rests.
In Chimel, the Supreme Court held that police officers may, as a routine part of effectuating an arrest, search the arrestee and the area within the arrestee’s immediate control, sometimes referred to as his “wingspan.”http://supreme.justia.com/cases/federal/us/395/752/case.html. These limited searches are reasonable to (1) ensure officer safety and (2) prevent the arrestee from concealing or destroying evidence.
Expanding on this principle, the Court in United States v. Robinson determined that a search incident to arrest is valid even if there is no viable threat to officer safety or evidence preservation. http://supreme.justia.com/cases/federal/us/414/218/case.html. As long as an officer is performing a valid arrest, a limited search is justified.
Finally, in Arizona v. Gant, the Court recognized that police may search a vehicle only when the arrestee is “unsecured and within reaching distance of the passenger compartment at the time of the search.” http://supreme.justia.com/cases/federal/us/556/07-542/opinion.html. That is, if an arrestee cannot physically reach a certain area at the time the search is effectuated, then that area is not legally subject to the search. The Court qualified its ruling, however, and allowed officers to search the passenger compartment of a vehicle, even if the arrestee is secured, when it is “reasonable to believe” that it will contain evidence of the crime of arrest.
Why Cell Phone Data is Different
Against this constitutional backdrop, the Supreme Court concluded that warrantless searches of digital data on a cell phone do not satisfy the rationales for the search incident to arrest doctrine, and are therefore unreasonable. Generally, to determine whether a given search is exempt from the warrant requirement, the Supreme Court balances individual privacy concerns against government interests.
With respect to government interests, two risks are typically involved: harm to officers and destruction of evidence. But when the search involves digital data, as it does with cell phones, there are no such concerns, because officers will still be able to examine the phone’s physical qualities to ensure that it cannot be used as a weapon.
Second, once officers secure the cell phone, the danger that any incriminating evidence will be destroyed is negligible at best. The United States argued that, even once secured, cell phones are still vulnerable to remote wiping or data encryption by third parties. However, third party involvement falls outside the purview of the search incident to arrest doctrine, and cannot be justified by the same rationales. To the extent police officers have a legitimate concern about losing incriminating evidence before a warrant can be obtained, the Court suggested they rely on exigent circumstances to search the phone immediately.
Most importantly, the degree of privacy intrusion in searching a person’s cell phone is exponentially greater than searches of a suspect’s pockets or a glove compartment. As the Court correctly notes, “the term ‘cell phone’ is itself misleading…many of these devices are in fact minicomputers that also happen to have the capacity to be used as a cell phone.” Given this wide range of functional capacity, the amount and variety of data that can be stored is immense, heightening individual privacy interests in phones.
But the Court did not stop there.
Not only did the Court acknowledge that warrantless cell phone searches could lead to massive invasions of privacy, it stated such searches could be more invasive than the search of a home. Today’s cell phones can, and oftentimes do, store electronic records typically found in the home i.e. bank account numbers, medical records, insurance information, etc., but they also contain “a broad array of private information never found in a home in any form–unless the phone is.” This is a remarkable, if not surprising, statement because the Court has long held that privacy expectations are most heightened in a person’s home. In making this recognition, the Court is helping curb an otherwise towering threat to individual privacy. Just remember, electronic information stored on a cell phone data can still be searched by police–but they need a warrant first.