9-Zip! Cell Phone Searches Require Warrants (Unless…)

Cell Phone and Hand.jpegImage: LeCours Chertok & Yates, LLP
The US Supreme Court has decided that the search of a cell phone – as a general rule – can’t be conducted without a warrant. The decision, Riley v. California, has had a lot of media attention, including coverage in the New York Times and the Guardian. The Guardian article provides a link to the opinion, but for convenience, we include a direct link to it here.

All nine justices concurred in the ruling, and eight of them joined in the opinion by Chief Justice Roberts. ‘The Supreme Court Justices Have Cellphones, Too’, as the Times pointed out this morning (this was the title of an op-ed piece by commentator Linda Greenhouse).

Concluding that “privacy comes at a cost,” the Court concedes at page 25 of the opinion that “our decision today will have an impact on the ability of law enforcement to combat crime.” Cell phones are excellent ponds to fish in, after all. Officers may find evidence that will help them convict you of the offense for which you’ve been arrested. They may find evidence of other offenses they might not otherwise have known about.

And, of course, they may also find things that will just humiliate you if they’re made public. Officers may or may not have been exploiting this power for private ends routinely. But the potential is always there, as shown by a case reported in the Houston Chronicle some years ago. While searching a young woman’s cell phone ‘incident to arrest’, an officer found that she had some racy photos of herself stored there. The officer downloaded them, and showed them to his buddies and co-workers.

You can see why, as was evident in another Times piece from April, there was a lot of nervousness as to how Riley would come out.

Anyway, the case having come out as it has, it’s hard – in retrospect – to see how it could have come out any other way and left our constitutional protections in any sense intact. The US Constitution’s Fourth Amendment states, after all, that

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As Chief Justice Roberts notes at Page 28 of the opinion,

Modern cell phones are not just another technologicalconvenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” [citation omitted]. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of theprotection for which the Founders fought.

In other words, you can’t sleep in your cell phone, but with that exception the cell phone in this day and age is pretty much the whole Fourth Amendment shebang or enchilada.

Exceptions will surely be carved out of this rule. At Page 26 of the opinion, the Court almost invites law enforcement to argue in the future that ‘”the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.'” [citation omitted].

Riley, by the way, is strictly concerned with what’s found in your cell phone. There is no discussion of another major issue in connection with cell phones: Finding your cell phone (and you) by getting your carrier to ‘ping’ your phone. ‘Pinging’ a phone, as described in a 2013 case, People v. Moorer, involves your carrier sending a signal to your phone (which has a GPS locator built into it); that signal commands your phone to answer back with its physical location.

The court in Moorer decided that that wasn’t even a search! This hasn’t been the unanimous conclusion of US courts, however. A very recent case out of the US Court of Appeals for the 11th Circuit – the 11th Circuit includes Alabama, Florida and Georgia – concluded that ‘pinging’ was a search, and that it shouldn’t be undertaken without a warrant.

Stay tuned.