Should Police Be Allowed To Search A Cell Phone Without A Warrant?
The question of whether the police can search ones cell phone without a search warrant has been at issue in numerous cases handled by the Firm over the past few years.
In The Eyes Of The Defense
The answer has always seemed so clear and obvious to criminal defense attorneys. Considering the incredible technological capabilities of today’s smartphones for email, messaging, storage of contacts, photographs, music, social media, etc., smartphones have made all of our traditionally private materials, which we used to leave at home, highly portable and now with us wherever we go. However, in the eyes of the Criminal Defense Bar, the new portability of this information does not make it any less private.
The Police Perspective
Police authorities have always believed that your legitimate expectation of privacy in anything you can carry with you outside of your home, in your pocket or purse, is lessened by the mere fact that you brought it with you. According to the police, you would leave the material at home if you wanted to keep it private. Thus, the argument went that a smartphone could be searched incident to an arrest on probable cause without a warrant, in the same manner that your wallet, your pockets or the interior of your car could be searched.
The Supreme Court Rules
Once and for all, the United States Supreme Court has finally ruled on the issue establishing the law of the land. In Riley v. California, 573 U.S. ______ (2014), Chief Justice Roberts, speaking for the Court, held that police officers may not search a cell phone found on an arrested individual’s person without first obtaining a warrant. In so ruling, the Court categorically distinguished a cellular phone from non-electronic items that might be found on a person or in a pocket book. The Court noted that “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The Court observed that the term ‘cell phone’ is itself misleading… [t]hey could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”
The Court rejected the Government’s argument that a rule allowing for the warrantless search of a cell phone was somehow necessary for officer safety or to preserve evidence of crime. While the Court acknowledged that searching a cell phone could on occasion serve to preserve valuable evidence, Chief Justice Roberts succinctly countered that “Privacy comes at a cost.” Riley, No. 13-132, slip op at 25 (2014).
You’re Going To Need A Warrant For That
So if you are arrested, can the cops search your phone? Justice Roberts answered this question with refreshing clarity: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.” Id. at 28.
-Post by Richard A. Finci and Jeremy Feldman