If you are arrested with a cell phone on you, can police search its contents? We are often asked this question by clients where law enforcement has seized their cell phones and refuse to give them back. Whether the police can search those phones without a warrant depends on where you’re arrested. At least, for now . . .
Courts are Divided on the Issue
The issue of whether it is constitutional for a police officer to search a cell phone without a warrant has been considered by many courts across the country. But judges in different states have come to varied conclusions as to whether police should be able to look through your phone after arresting you, leading to confusion and disagreement among courts, law enforcement officials, and commentators.
The Supreme Court of the United States has been asked to rule in two cases about warrantless searches of cell phones. However, the Court has not yet announced whether it will hear the cases during its 2013-2014 term. For now, we must look to lower courts for guidance on this subject.
Some Courts: Searching a Cell Phone Incident to Arrest Requires a Warrant
A federal court in New York recently ruled on the issue. In United States v. DiMarco, a judge in the Southern District of New York granted a defendant’s motion to suppress photographs found on his cell phone during a search subsequent to his arrest. The court agreed with the defendant that he had an expectation of privacy in the contents of his cell phone and that the search of a cell phone incident to arrest was one that requires a warrant.
In May 2013, the United States Court of Appeals for the First Circuit issued its decision in U.S. v. Wurie. It held that police, after seizing a cell phone from an individual’s person as part of his lawful arrest, cannot search the phone’s data without a warrant. The appellate court’s decision binds lower federal courts in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.
The supreme courts of two states have also ruled that police cannot search the contents of a phone incident to a person’s lawful arrest. In State v. Smith, the Ohio Supreme Court held that the Fourth Amendment to the United States Constitution prohibits the warrantless search of data within a cell phone when the phone is lawfully seized incident to an arrest. In Smallwood v. State, the Florida Supreme Court reached a similar result.
Other Courts: Warrantless Searches of Cellphones are Constitutional
To law enforcement officers, cellphones are a potential treasure trove of criminal evidence. The call logs, text messages, emails, contacts, and pictures stored on a cell phone can be very damaging in court. It is no wonder that police want to search through the cell phones of arrestees. However, the Fourth Amendment to the United States Constitution guarantees that all searches must be “reasonable.”
Because of this, it is troublesome that some courts have ruled that police can rightfully search an arrestee’s phone without a warrant. The United States Courts of Appeal for the Fourth Circuit, Fifth Circuit, Seventh Circuit, and Tenth Circuit have all ruled that searches of cell phones incident to arrest do not require a warrant. So too have appellate courts in California, Colorado, Kansas, Alabama, and Georgia.
What is the rationale for these decisions? They are based on an opinion issued by the Supreme Court of the United States in 1973 (long before cell phones came into widespread use). In U.S. v. Robinson, the Court held that incident to a lawful arrest, a thorough search (or frisk) of an arrestee for weapons, and also to prevent the concealment or destruction of incriminating evidence, is reasonable under the Fourth Amendment of the United States Constitution. Thus, police can search “containers” people are carrying on their person when they are arrested. The Robinson container rule has been extended by the above-mentioned courts to include cell phones.
Many have argued that the sensitive and personal nature of information that can be stored on a cell phone sets it apart from other “containers” like wallets, backpacks, or cigarette cartons. It remains to be seen, however, whether the nation’s highest court will agree. Should the Supreme Court decide to hear the appeal in either Riley v. California or U.S. v. Wurie, courts and law enforcement officials will likely know with certainty whether searching a cell phone incident to arrest requires a warrant.
There are indications that state legislatures may act to reform the law in this area. Montana recently passed a law that requires law enforcement officials to obtain a warrant before they can use data from a cell phone carrier to establish a person’s location. While this law does not address the types of searches discussed in this post, it is promising that lawmakers are working to protect privacy rights in the digital age.