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.