JURIST Columnist Adam Banner of the Oklahoma Legal Group discusses the Fourth Amendment implications of warrantless cell phone searches in the context of two recent Supreme Court decisions on the issue…

Two cases recently decided by the US Supreme Court will likely have a tremendous impact on our Fourth Amendment protections against unreasonable searches and seizures of cell phones in the absence of a warrant. Luckily for the criminal defense bar (and privacy rights in general), the Supreme Court has ruled that police generally may not, without the safeguards of a warrant, search digital information on a cell phone seized from a recently arrested individual.

The standard, up and until these new opinions, has been that property on a person at arrest—a wallet or a purse, for example—may be searched. However, in Riley v. California 
and United States v. Wurie, the Supreme Court was asked to reconsider the nature of the Fourth Amendment in the face of ever-changing technology. According to the High Court’s most recent decision on the issue, we can all rest a little easier in the knowledge that the court has not completely killed the few shreds of stability the Fourth Amendment has historically offered.

The Supreme Court heard oral arguments in both cases in April, and Chief Justice Roberts delivered an opinion which is sure to stand as a hallmark in the fight to balance privacy interests in the face of ever-changing technological advances.

The arguments hinged on a need for computer-specific Fourth Amendment rules to counteract privacy issues raised by new technology.

Previously, the “Robinson Rule” applied to the post-arrest search and seizure of property on a person. In United States v. Robinson, a defendant was pulled over and arrested for driving with a revoked license. As he was patted down, police found a cigarette pack that contained heroin. Although Robinson challenged the “frisk” as a Fourth Amendment violation, the Supreme Court found that a thorough search of a person at arrest was not a violation, but rather a reasonable search for weapons or to prevent the concealment or destruction of evidence, further building on its previous precedent established in Chimel v. California.

Consequently, the majority of the arguments in Riley and Wurie centered on the court’s two specific and clear reasons for searching a person at arrest: to protect the safety of law enforcement and the public by securing weapons and to prevent a suspect from concealing or destroying evidence.

In oral arguments, Jeffrey L. Fisher, attorney for David Riley, argued that neither element was present in the search of the petitioner’s cell phone. The phone had already been seized, and therefore the chance of evidence being deleted or destroyed had been nullified. Furthermore, scanning apps, emails, photos and other digital files on the phone would not reveal a weapon.

Justice Kennedy asked Fisher if he believed police would have been able to obtain a warrant to search his client’s cell phone. Fisher responded, “In all likelihood, yes … [but] this court has said time and again that the mere fact the police could have gotten a warrant but didn’t does not excuse a Fourth Amendment violation.”

The ability to get a warrant for a search of a cell phone subsequent to seizure also arose in oral arguments for Wurie. Michael R. Dreeben, attorney for the petitioner, reasoned that a search of an arrestee’s cell phone log was not a violation of the Fourth Amendment, but rather a reasonable search to find evidence of a person’s identity. Dreeben said that, in the Wurie case, police saw the suspect’s cell phone ringing with the caller ID of “My House” displayed. Subsequently, an officer pressed one button to allow the call to come through and another button to check the phone number associated with the call.

Dreeben further asserted, “That kind of a search serves valid, time-honored functions in the search situation of helping to ascertain the identity of the offender.” He noted that it was particularly relevant in the Wurie case as the arrestee then lied about where he lived, which would have affected the ability to obtain a warrant to search his home.

However, Justice Sotomayor was not so easily convinced. She responded, “I’m not so sure. If he was at the precinct, they could have gotten a warrant, and once he lied about his address, they would have known he wasn’t living there and would have gotten a warrant.”

Ultimately, reason and precedent prevailed, as the High Court accepted the fact that there is a clear-cut distinction between the physical nature of a cell phone itself and the digital nature of the potentially private information that the physical phone contains.

Moreover, the court opined that the recent decisions in no way limit the ability of law enforcement to employ other existing warrant exceptions as applicable on a case-by-case basis. For example, even though the “search incident to arrest” exception to the warrant requirement does not apply to cellphones, there may be situations that allow for law enforcement to search a phone without a warrant based on the “exigent circumstances” exception.

In other words, it was not necessary to search the phones in these cases without a warrant; it was simply easier. When it comes to the Fourth Amendment, the path of least resistance can often be the catalyst for a very slippery slope. However, the court agreed that none of the risks offered in Chimel or Robinson were present in these cases, and as such, there was no pre-existing search warrant exception for law enforcement to hang its hat on.

These decisions show the court returning, in some sense, to the safeguards of the warrant requirement in regards to criminal investigations. This is great news following some recent head-scratching opinions. Hopefully, this new precedent will signal that the Supreme Court is not completely willing to fold in the face of technology which seems to advance exponentially every day. However, unless and until the court has an opportunity to examine and analyze the ever-expanding grip that growing technological advances will have on the protections offered by the Fourth Amendment, it will be up to criminal defense attorneys across the nation to rise to the occasion by vigorously protecting the privacy interests of their clients.

Adam R. Banner, founder of the Oklahoma Legal Group, is a criminal defense attorney in Oklahoma City, Oklahoma. His practice focuses on all issues relating to the defense of those accused of criminal activity. From trial litigation to appellate representation, he specializes in the protection of his clients’ constitutional rights.

Suggested citation: Adam Banner, Warrantless Cell Phone Searches, JURIST-Hotline, August 6, 2014, http://jurist.org/hotline/2014/08/adam-banner-cell-phone-searches.php.