In Riley v. California, the United States Supreme Court held that the police can no longer search cell phones without a warrant. This decision may not have a significant impact in Missouri because Missouri courts already held that you could not obtain from a cell phone company the content of text messages without a search warrant. An earlier Post on this blog discusses the use of a GPS device to track the movement of a vehicle without a search warrant providing some context for the latest United States Supreme Court decision dealing with the right of privacy.
Despite the straightforwardness of this very important decision the case merits further analysis as we try to assist law enforcement agencies react to this decision. So what protocols do police officers need to follow when they arrest someone who has a cell phone? Of course, almost everyone they arrest will probably have a cell phone, which makes it important that the advice offered by the Court with respect to what police officers may do when they arrest a person with a cell phone gets to the officers in the field as soon as possible.
New Rules – First, according to the United States Supreme Court the officer can physically examine the cell phone to ensure that it cannot be used as a weapon such as a razor blade hidden between the phones. This point almost seems laughable (except by those who have been confronted with a person with a slashing razor blade) but it does give the officer a legal basis upon which to examine the phone. Second, the officer can secure the phone by turning it off, removing the battery, or placing it in Faraday bag to prevent destruction of data by remote wiping of the data from the phone or by so-called “geofencing” (deletion of data when you leave a certain area). If the officers are concerned about encryption or other potential problems, they can leave the cell phone on and place it in an enclosure that isolates the phone from radio waves such as the so-called “Faraday bag.” Apparently these sandwich like bags are made of aluminum foil, are cheap, lightweight and easy to use.
If the officer sees a phone and it is unlocked, the officer can disable the phones automatic lock feature in order to protect the phone from locking and encrypting data. In other words, officers can take reasonable steps to secure a phone at the scene to preserve evidence while they await a warrant.
Emergency Situations – If police officers are truly confronted with a “Now or Never situation” and the circumstances suggests that the defendants phone will be the target in a minute of a remote wipe the Court indicates the officer may be able to rely on exigent circumstances to search the phone immediately. The court did recognize that a search incident to arrest based on the “exigencies of the situation” could justify a search of the data on the cell phone when the police are pursuing a fleeing suspect and to assist persons who are injured or who are threatened with imminent injury.
I assume that the Boston Marathon bombing or a missing child under an “Amber Alert” might qualify as exigent circumstance exceptions. Still there is no way of knowing for sure until a body of case law is developed. Until a body of case law is developed the Court seems willing to continue to grant law enforcement officers a wide berth by protecting them from legal liability based upon the qualified immunity defense.
Courts legal analysis – The Court’s opinion rest in large part upon the realization that the
modern-day cell phone is a computer allowing the person possessing the phone to carry huge amounts of data, photographs, contacts, telephone calls, E-mails, and contacts or so to speak literally a person’s life story. As a consequence the court concluded that searching a cell phone is more intrusive than searching a person’s house because there is potentially more information on the cell phone than what you would find in your house.
For those like myself who dabble at times in search and seizure law the courts three-page analysis of the so-called “trilogy of cases” governing search and seizure law is a classic and a great jumping off point. Against this backdrop, the court measures the application of these cases in the context of cell phone technology, particularly smart phones. The court strikes the balance in favor of the right privacy even though it recognizes that its rule, requiring a search warrant to examine the contents of a cell phone, will adversely affect law-enforcement.
Right of Privacy – As the courts move down the road to address other privacy questions this case will clearly be the starting point. Remember this was a 9 to 0 opinion. That tells us a lot about what the Court thinks about the right of privacy. You can expect the Court to come back to this case as we work through privacy/technology issues.
Adaptation – Suddenly with this case law-enforcement got a lot harder. This point is illustrated by the facts, which clearly show that the evidence from defendants cell phones that were seized and searched without a warrant lead to convictions of very bad actors with a long criminal history.
Not only will police officers have to adapt but also you can expect criminals to realize they can obtain a significant advantage by using smart phones with encryption, remote wiping, “geofencing” and other devices to prevent the police from obtaining the data on the phone. I suspect the criminals will adapt a lot quicker than government.
Howard Wright © 2014