JURIST Guest Columnist Veronica Reyes of St. John’s University School of Law, Class of 2016, is the tenth author in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Reyes discusses why warrantless searches of cell phones by the police may not be the best solution in protecting our Fourth Amendment rights…The Riley v. California decision is a slight victory for privacy rights advocates like myself who believe individuals should be protected from unreasonable searches of personal information. In Riley, the Supreme Court held that police officers must “get a warrant” before searching the contents of an arrestee’s cell phone. Nonetheless while the court’s ruling thoroughly discussed the privacy risks posed by warrantless cell phone searches, I am not confident the decision went far enough in protecting cell phone privacy rights.

The Riley holding is disconcerting because it does not provide law enforcement officials with suitable instructions for implementing cell phone search warrants. A warrant must describe with reasonable precision the places to be searched and items to be seized. However by declining to define particular requirements for what can and cannot be searched on a cell phone, the court’s ruling left police officers with considerable free reign to still search through private information on an arrestee’s cell phone.

The two cell phone privacy cases heard by the court help illustrate this point. Riley and US v. Wurie dealt respectively with police searches of a smartphone and flip-phone. In the first case, police pulled Riley over for driving with expired license registration tags. When police discovered that Riley’s driver’s license was also suspended they searched his car, found two guns, and arrested him. They found a smartphone in Riley’s pocket, searched it, and discovered videos and photographs connecting Riley to a gang drive-by shooting. In the second case, police arrested Wurie for selling cocaine. Police then searched Wurie’s flip-phone and found his home phone number, which they used to locate his home address. Upon searching his home police found more drugs and weapons in Wurie’s possession.

In both cases, warrantless cell phone searches gave police the evidence necessary to prosecute Riley and Wurie for new crimes. But at what cost? Many individuals believe that police best protect society when given full authority to search and seize incriminating evidence that locks up criminals. They feel that the benefits of a cell phone search, which can recover fruits of a crime, far outweigh the protection of a criminal’s privacy rights.

Yet, I caution these individuals to consider the constitutional problem with warrantless cell phone searches: they violate the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures absent probable cause or a warrant. This protection is violated when police officers search digital data on a cell phone without a warrant. This protection is also violated if, despite a warrant, the warrant does not precisely authorize what can and cannot be searched on a cell phone.

Through its decision, the court drew many appropriate conclusions. First it declined to extend the “search incident to a lawful arrest exception” to cell phone searches, which ordinarily allows police officers to search an arrestee’s person for twin purposes of protecting officer safety and preserving evidence. In Riley, the court correctly found that these purposes are not an issue during a cell phone search. Digital data cannot be used to harm a police officer, nor are officers concerned with remote wiping or data encryption that would destroy evidence on the phone before they obtain a warrant.

Second the court embraced the digital age, discussing how cell phones differ both qualitatively and quantitatively from other physical objects on an arrestee’s person. Chief Justice Roberts compared cell phones to minicomputers; they are portals to vast amounts of information that individuals may no longer store in their own homes. Finally the court determined that protecting the expectation of privacy in data stored on cell phones outweighs immediate needs of law enforcement to protect society. Privacy concerns are certainly magnified when one considers how much information police officers can uncover from cell phone searches.

Thus, post Riley, police officers now know they must get a warrant before searching a cell phone if they want evidence to withstand a suppression hearing. Nevertheless, by evading a discussion of particularity requirements, the Supreme Court’s decision left law enforcement with uncertainties about how to implement the cell phone search warrant requirement.

Legitimate questions arise regarding what digital data an officer can search when he requests a warrant for a cell phone. For instance, cell phones store emails, text messages, photographs, videos, internet searches, mobile software applications and much more. This information may not be pertinent to a criminal investigation. Furthermore, this information may not be physically stored on the cell phone, but may be on a remote server or in “the cloud” which pose their own privacy issues.

I suggest that we can find guidance for implementing cell phone search warrants in Justice Alito’s concurring opinion. Agreeing with the majority that warrants are the best solution, Alito suggested that the legislature enact laws to determine what can and cannot reasonably be searched on a cell phone.

Therefore, to ensure that cell phone privacy rights are protected, Congress should enact a law that would regulate searches of cellular devices based on categorizing the information stored on the device. The categorization would differentiate digital data stored directly on a cellular device from digital data synchronized with a cellular device. The law would still require police officers to show probable cause to search information on the cell phone. However, synchronized data, because of its connection to sources outside of the cellular device, would be afforded greater privacy protection than data stored directly on the cellular device. Searches of this information would require officers to show that there is more than mere criminal activity afoot to obtain a search warrant for such information.

The Riley ruling reaffirmed an arrestee’s fundamental Fourth Amendment protection against unreasonable searches and seizures. Yet while the court acknowledged the necessity of a search warrant requirement for cell phones, it fell short in discussing how to implement such a requirement, giving police considerable authority in searching cell phones. Through Congress’ initiatives, we can hope that a balance between privacy interests and the goals of law enforcement will be perfectly struck through a defined warrant requirement.

Veronica Reyes is a third-year law student at St. John’s University School of Law. She currently serves as a Senior Articles Editor for the St. John’s Journal of Civil Rights and Economic Development and as a Legal Writing teaching assistant for first year students. During her first and second year, she worked at a law firm in Manhattan specializing in criminal appeals.

Suggested Citation: Veronica Reyes Why Police May Still Have Free Reign to Search an Arrestee’s Cell Phone Despite a Warrant , JURIST – Student Commentary, Feb 3, 2016, http://jurist.org/forum/2016/veronica-reyes-search-phones.php.