Question: Can you search the data on an arrestee’s cell phone without a warrant?
Quick Answer: No, a warrant is generally required to search the data of a phone after arrest because of the amount and type of private, personal information stored on a modern phone.
Riley v. California, U.S. Supreme Court, June 25, 2014, decided with
United States v. Wurie, U.S. Supreme Court, June 25, 2014
Facts in Riley: After David Riley was arrested for carrying a concealed weapon, the arresting officer seized his phone and looked through it. The officer noticed the letters “CK” in the contents of the phone and believed this stood for “Crip Killers,” a slang term for members of the Bloods gang. The officer gave the phone to a detective in the gang unit, who examined videos, photos, text messages, and other information. He found video of young men sparring, with someone yelling “blood” in the background, and a photo of Riley standing in front of a car believed to be involved in a shooting. Based on this, Riley was charged with additional crimes in the shooting. Although he was convicted, the U.S. Supreme Court vacated the conviction because it found that the search violated the Fourth Amendment.
Facts in Wurie: Brima Wurie was arrested after a drug sale. At the station, officers seized two cell phones. One of the phones repeatedly received calls to a number labeled “my house.” Officers opened the flip phone and checked the call log to find the number. Using a phone directory, officers traced the number to an apartment building, finding Wurie’s name on the mailbox. The apartment was secured while a search warrant was obtained. Crack, marijuana, and firearms were discovered in the apartment. Even though the officers obtained a warrant to search the house, the appellate courts reversed the conviction because they were led to the house after an impermissible warrantless phone search.
Importance: After you’ve arrested someone, there’s a lot of temptation to turn a cell phone on and flip through it. But
Riley and
Wurie offer cautionary tales why you shouldn’t. Both suspects were arrested for more significant crimes, and both convictions were overturned because the officers looked through a cell phone without a warrant. While you can physically seize a phone, you cannot skim through its contents.
If you do, however, find yourself in a situation where exigent circumstances (another exception to the warrant requirement) require the phone to be searched immediately, for example accessing the phone to turn the lock feature off or searching a phone that is the target of an imminent remote wipe, it may be considered as a reasonable step to secure a scene to preserve evidence while awaiting a warrant. But keep in mind that you need to have specific facts that demonstrate why the phone was about to be remotely erased. You can’t just argue that because the phone
could be remote wiped, you had to search it without first getting a warrant.
Keep in Mind: Technology is ever changing. The court considered how the following technologies affect how cell phones are searched:
- Remote Data Wiping: Data wiping, although a frequent plot in many TV shows, is not common in practice yet. It is easy to stop a third party from remotely wiping a phone by turning it off or taking out the battery, thereby disconnecting it from the network, or by placing it in an aluminum sandwich-size bag called a faraday cage, which blocks the network signal to the phone. Many police departments around the country are using the bags as standard practice when seizing cell phones. The court found that the possibility of remote data wiping was not a reason to allow a warrantless search.
- The Cloud: In an interesting twist in Riley, the government agreed that any search of a cell phone that could occur incident to arrest, should not include data that accessed remotely, such as in the cloud. But as law enforcement, how do you know what data is stored on the phone and/or in the cloud? The government made the suggestion that law enforcement should disconnect phones from the network prior to search and develop protocol to make sure cloud data is not accessed. The court did not provide an answer; it just stated that this example of easily assessable data not even stored on the phone is why the privacy interests are so high.
Ohio Law: In 2009, the Ohio Supreme Court in
State v. Smith examined a similar question concerning whether data could be searched on cell phones. Antwaun Smith was arrested on drug-related charges after responding to a call to his cell phone from a crack cocaine user acting as a police informant. During the arrest, police took Smith’s cell phone and later searched the phone’s contents without a warrant or his consent. Just as in
Riley, the Ohio Supreme Court’s ruling found a warrantless search is prohibited when there are no immediate safety concerns. More on
Riley and
Smith appeared in a recent
Court News of Ohio story.