Search of Digital Information on a Cell Phone Cannot be Justified Under the Search Incident to Arrest Doctrine

by | Jul 25, 2014

The following story is one I wrote, and which was originally published in the July 2014 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Reprinted here with permission of the Philadelphia Bar Association:

Search of Digital Information on a Cell Phone Cannot be Justified Under the Search Incident to Arrest Doctrine

This past spring, we wrote about two companion cases argued before the Supreme Court of the United States that could settle the question of whether the search of the digital information contained in a cell phone can be justified under the search incident to arrest doctrine. Now, on June 25, 2014, the Supreme Court, in a settling, unanimous decision ruled that police may not, without a search warrant, search digital information on a cell phone seized from an individual who has been arrested. Chief Justice John Roberts authored the opinion of the Court. 

The companion cases are Riley v. California and United States v. Wurie. The salient facts of each of these cases were summarized in the March 2014 edition of Upon Further Review.

In the Supreme Court’s Riley and Wurie opinion, the analysis began by citing the Fourth Amendment to the United States Constitution, noting how the labeling of the search incident to arrest doctrine as an exception to the warrant requirement of the Fourth Amendment is a misnomer because warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.” The opinion then laid out a discussion of the handful of Supreme Court precedent in the search incident to arrest arena, beginning with the seminal case limiting the scope of a search incident to arrest, Chimel v. California, 395 U.S. 752 (1969) (disallowing the search of an arrestee’s home even where he is arrested therein), and on through United States v. Robinson, 414 U.S. 218 (1973) (permitting the search of a container, a cigarette pack, found on the arrestee’s person at the time of arrest), United States v. Chadwick, 433 U.S. 1 (1977) (disallowing the search of a 200-pound, locked footlocker with an arrestee at the time of arrest), and Arizona v. Gant, 556 U.S. 332 (2009) (disallowing the search of a vehicle where the arrestee is secure and outside the reaching distance of the passenger compartment at the time of the search).

Before applying a balancing test for warrantless searches, the Court began by stating how modern cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” In applying the balancing test for warrantless searches, which assesses the degree to which a warrantless search intrudes upon an individual’s privacy versus the degree to which the warrantless search is needed for the promotion of legitimate governmental interests, the opinion discussed a realistic dichotomy between the search of digital information contained in a cell phone and the search of physical objects like the case in Robinson. The Court then discussed the two rationales weighing in favor of permitting a search incident to arrest established in Chimel, the need to uncover and disarm weapons from an arrestee and to prevent the destruction or loss of evidence. As for the need to uncover and disarm weapons from an arrestee, the court held that law enforcement officers are still free to search the physical aspects of a cell phone to make sure there are no physical threats, like, for example, a concealed razor blade secreted between the phone and its case. However, the digital information contained with a cell phone poses no physical danger to a police officer. Then, as for the interest of preventing the destruction or loss of evidence, the Court held that there is not much of a threat of this and that there are reasonable, cost-effective options available to law enforcement which can ensure that data will not be lost if they thereafter choose to apply for a search warrant.

The opinion further outlined the significant privacy interests involved with cell phones and the way people use them in today’s age. It also discussed how data that is accessible on a cell phone is stored, and the facts that data accessible on a cell phone may not be stored on the phone at all with the burgeoning prevalence of cloud computing. In arguing a point in favor of permitting searches, the United States proposed a solution where law enforcement could either disconnect a phone from the network before searching it or develop protocols to address concerns raised by cloud computing. The Court found that the development of protocols to address cloud-computing concerns was a good idea, “but the Founders did not fight a revolution to gain the right to government agency protocols.”

After the United States and California proposed several other situations where they believed exceptions could be made, the Court remained steadfast with a bright-line rule against the warrantless search of a cell phone absent exigent circumstances, concluding: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

Did you enjoy this article? You might also find this post on cell phone searches to be helpful.

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