Wednesday, the United States Supreme Court held that officers seizing a cell phone incident to arrest must get a warrant to examine the phone.
In a single opinion resolving two cases, Riley v. California and United States v. Wurie, Chief Justice John Roberts stepped back in time and leaned on Founding Father John Adams’ claim that the colonists’ antipathy for general searches gave birth to “the child Independence.”
Recognizing that the majority of Americans carry a smart phone, Chief Justice Roberts quipped that “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
In Riley v. California, David Riley was convicted of attempted murder, shooting at a vehicle, and assault. He was arrested following a traffic stop based on expired registration. Officers found guns connected to a gang shooting.
Riley’s mobile phone was seized incident to arrest. Officers found data entries with the notation “CK”, suggesting the gang moniker of “Crip Killers.”
Officers also viewed photos of Riley involved in gang activity.
The cell phone call log also showed that Riley’s phone had placed a call near the time and location of the shooting. A California court upheld the warrantless search of the phone incident to Riley’s arrest because the phone was “immediately associated” with Riley.
In United States v. Wurie, Brima Wurie was charged with drug distribution. Officers seized two cell phones from Wurie incident to his arrest. One of the phones began to ring at the police station.
Officers opened the phone, examined it and obtained information that led them to search a home from which they seized drugs and a gun. The First Circuit Court of Appeals held that the search could not be justified as a search incident to arrest because there were no concerns of officer safety or evidence destruction.
The government urged the Court to hold fast to traditional search incident to arrest rules. The search incident to arrest doctrine is built on two rationales: preserving officer safety and the prevention of destruction of evidence.
Those rules were first recognized by the Supreme Court exactly 100 years ago in Weeks v. United States, 232 U.S. 383, 392 (1914). The Court made quick work of the lack of danger presented by a cell phone, though the Court did allow for inspection of the phone to check whether the phone is actually a concealed weapon. Law enforcement has documented a few cases of a firearm or a knife concealed as a phone.
The Court acknowledged that a cell phone can hold valuable evidence vital to an investigation and prosecution. However, the vast storage capacity of a smart phone prompted the Court to distinguish between searching an arrestee’s wallet, for example, and the phone’s digital data that might amount to millions of pages of documents and could expose the owner’s entire personal history, ranging from intimate medical information to GPS location of recent movements.
Chief Justice Roberts characterized the information on a cell phone as “a digital record of nearly every aspect of their [owners’] lives — from the mundane to the intimate.”
Chief Justice Roberts continued, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
The Court’s restriction on searching an arrestee’s cell phone even extends to merely scrolling through the recent call list. Perusing recently dialed numbers would reveal more than just digits; officers could potentially identify associates, locations visited, etc.
The broad opinion did carve out some exceptions for public safety exigencies. Officers can examine a phone and phone case to ensure that it is not hiding a weapon or contraband. The Court gave examples of warrantless searches permissible under the exigent circumstances doctrine. For example, an officer might search a cell phone without a warrant to prevent remote detonation of a bomb, to help find a missing or abducted child, to find a fleeing suspect, or to prevent imminent injury.
Ironically, the same technology addressed by the Court’s new rule can help officers blunt the impact on investigations. In many locations, officers can quickly obtain an electronic search warrant using a laptop computer, tablet or smart phone.
For example, Utah’s E-warrant system allows a trooper to use a smart phone quickly obtain a warrant by email for a blood draw where a suspected drunk driver refuses to provide a sample.
Law enforcement trainers and administrators should move quickly to train officers on digital evidence preservation and to provide the proper equipment. The officer on the street should be familiar with how to preserve a phone’s digital data and given a Faraday bag to carry in the patrol car. Many investigators are already familiar with Faraday bags, which can block transmission and reception of signals that could be used to trigger a remote data wipe.
In emergencies, you can fashion an improvised Faraday device with a microwave oven (not energized!) or an empty aluminum paint container.
Even wrapping a phone in several layers of aluminum foil will work.
The Faraday bag is not the perfect solution. Some phone apps can automatically delete data on a pre-programmed schedule, even if the phone is turned off. Downloading and preserving the data prevents loss.
A Cellbrite Universal Forensic Extraction Device allows very rapid downloading of data from most cell phones and tablets, preserving the data for later examination when a search warrant is in hand. More and more agencies have access to such devices. Check with local prosecutors for guidance on downloading data prior to obtaining a search warrant.
Lessons from Riley v. California and United States v. Wurie for the officer on the street:
• An arrestee’s cell phone can’t usually be searched (no data may be viewed) incident to an arrest.
• Get a quick education on Faraday bags and preserving digital evidence.
• Today’s decision deals only with data stored on the phone itself. The rules for searches for data in cloud storage or held by an Internet service provider or phone company remain the same (warrants are almost always required).
• Turn technology in your favor by learning the local rules governing remotely obtained telephonic and e-warrants.