This installment of The Corner will tackle the “cellphone searches incident to arrest.”
Today’s training bulletin will discuss cellphone searches incident to arrest. The bulletin will discuss United States Supreme Court’s decision concerning such searches. Before getting started, as always, I am going to read this disclaimer:
Bulletin Disclaimer:
I am not an attorney and make no claim to be an attorney. I developed this scenario/training bulletin based on my 38 years of law enforcement experience, my professional application of the Fourth Amendment (based on case law) in the field as a law enforcement officer, and my extensive study of case law pertaining to search and seizure.
I developed and am providing this training bulletin for information only. I make no claim that my interpretations and perceptions of case law provided in the answers to the scenarios are correct in any or all circumstances. All government agents and any other person gathering information from this presentation should consult their respective law enforcement agencies, City Attorney’s Office, District Attorney’s Office, State Attorney General’s Office, or United States Attorney’s Office for their interpretation and application of this information.
Let’s Begin
The purpose of this training bulletin is to provide a brief overview of the Court’s ruling concerning the Riley v. California (2014) and United States v. Wurie (2014) cases dealing with officers searching a suspect’s cell phone incident to arrest. The Court addressed both cases in its ruling.
The Riley v. California (2014) and United States v. Wurie (2014) Cases
Facts: Concerning Riley, he was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted. The California Court of Appeal affirmed.
Concerning Wurie, he was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone from Wurie’s person and noticed that the phone was receiving multiple calls from a source identified as “my house” on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the “my house” label, and traced that number to what they suspected was Wurie’s apartment. Officers secured a search warrant for Wurie’s apartment and found drugs, a firearm, ammunition, and cash (in the ensuing search). Wurie was charged with drug and firearm offenses. He moved to suppress the evidence obtained from the search of the apartment. The District Court denied the motion, and Wurie was convicted.
Riley and Wurie appealed their convictions to the United States Supreme Court, which granted certiorari for both.
Issue: Can the police, “without a warrant, search digital information on a cell phone seized from an individual who has been arrested”?
Holding: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.
Reasoning: The Court, in its reasoning, went through the history of search incident to arrest, citing several cases including the following:
- Chimel v. California, 395 U. S. 752 (1969), which reasoned that officer safety concerns warrant a search of the arrested person and the immediate area around him to locate weapons the arrestee may use to resist arrest or escape.
- United States v. Robinson, 414 U.S. 218 (1973), which applied the Chimel analysis to the search of the arrestee’s person: Custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.
- United States v. Chadwick, 433 U. S. 1, 15 (1977), which clarified Robinson and offered that the search incident to arrest applied to the arrestee’s “personal property . . . immediately associated with the person of the arrestee.”
- Arizona v. Gant (2009) in which the Court opined, “Gant added, however, an independent exception for a warrantless search of a vehicle’s passenger compartment “when it is „reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.‟”
The Court’s Reasoning
The Court then turned its focus on Riley and Wurie and differentiated these cases from the aforementioned cases, due to the technological advances in cell phones offering that such technology was “nearly inconceivable just a few decades ago, when Chimel and Robinson were decided. The Court opined that, “absent more precise guidance from the founding era,” it had to “determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”
The following are excerpts from the Court‟s opinion that compare and contrast the officer safety focus in the Robinson and Chimel opinions with Riley and Wurie, to explain the Court‟s reasoning:
But while Robinson‟s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones.
Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson. We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.
Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon— say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.
To the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.
In addition to the officer safety discussion, the Court weighed in on privacy issues and the Government and State’s arguments concerning exigency issues dealing with the ability to wipe the cell phone if officers do not immediately view the cell phone’s contents. The following are excerpts from the Court’s opinion that explain the Court’s reasoning about such issues:
With respect to remote wiping, the Government’s primary concern turns on the actions of
third parties who are not present at the scene of arrest. And data encryption is even further afield. There, the Government focuses on the ordinary operation of a phone’s security features, apart from any active attempt by a defendant or his associates to conceal or destroy evidence upon arrest. We have also been given little reason to believe that either problem is prevalent.
As to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves.
If “the police are truly confronted with a „now or never‟ situation,”—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately.
Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.
The Bottom Line:
Officers cannot search cell phones incident to arrest. In order to search the cell phone
of an arrestee, the officer will need one of the following:
- The arrestee’s consent to search the cell phone
- A clear and strongly articulated exigency exception. The Court authored the following comments concerning exigencies:
Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. In Chadwick, for example, the Court held that the exception for searches incident to arrest did not justify a search of the trunk at issue, but noted that “if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage.”
In light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone. The defendants here recognize-indeed, they stress-that such fact-specific threats may justify a warrantless search of cell phone data.
· A warrant based on probable cause.
I hope this information provides clarification concerning searching a suspect’s cell phone incident to arrest. As always, if you have any questions, let me know. Eric