Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

By Lacy Triplett

In relevant portion, the Fourth Amendment provides people “the right…to be secure in their persons…and effects, against unreasonable searches, and no warrants shall issue, but upon probable cause…”[1] Although the Fourth Amendment states that searches of persons and their effects must be conducted pursuant to a warrant, there are certain exceptions to that rule.[2] One common exception is a search incident to arrest, which as stated in Chimel v. California permits a police officer to search an arrestee’s person and the area within the arrestee’s immediate control.[3] The Chimel Court rooted the search incident to arrest exception in two justifications: (1) the need to protect an officer’s safety and (2) the need to prevent the arrestee from destroying evidence.[4]

In addition to searching the arrestee’s person, any items or containers on the arrestee’s person at the time of the arrest or within the arrestee’s reaching distance may be searched incident to the arrest.[5] The exception has been used for decades to uphold the warrantless searches of a variety of objects, such as pagers, wallets, and address books.[6] Yet the law is in flux in regard to warrantless searches of cell phones. Various circuits have decided the issue with the majority of those courts holding that cell phones are permitted to be searched incident to arrest under varying Fourth Amendment jurisprudence.[7] Despite the variance among the circuit courts, the Supreme Court will soon settle the split and provide police officers with an easy and practical rule to apply in the field.

On April 29, 2014, the United States Supreme Court will hear oral arguments regarding whether the Fourth Amendment requires police officers to obtain a search warrant prior to searching an individual’s cell phone incident to his lawful arrest.[8] The Court will hear United States v Wurie and its companion case, Riley v. California, both of which involve cell phone searches with the former being a flip-phone cell phone and the latter being a smartphone.[9]

United States v. Wurie

An officer was performing routine surveillance in Boston when he noticed Wurie and another individual engaged in what the officer believed to be a drug sale in a convenience store parking lot.[10] Wurie drove off in his car, while the officer and another member of the Boston Police Department stopped the other individual and found two plastic bags of crack cocaine in his pocket.[11] The individual stated he bought the crack cocaine from Wurie and noted that Wurie lived in South Boston.[12] Wurie was later arrested for distributing crack cocaine.[13] When Wurie subsequently arrived at the police station, two cell phones were taken from him as well as a set of keys and a large sum of cash.[14] Prior to being booked, one of Wurie’s cell phones received repeated calls from a number listed as “my house.”[15] The officers then opened Wurie’s cell phone to check his call log, and as soon as the officers opened the phone they saw Wurie’s wallpaper, which was a picture of a young black woman holding a baby.[16] The officers were able to determine the phone number associated with the caller ID for “my house,” which led them to an address where Wurie’s car was parked when he was arrested.[17] The officers then took the keys they confiscated from Wurie and went to the address associated with “my house” where the officers saw a woman who resembled the photograph on Wurie’s cell phone wallpaper.[18] Once at the apartment, the officers entered and “froze” it while they obtained a search warrant.[19] Upon receipt of the warrant, the officers seized cocaine and marijuana, guns, ammunition, and cash.[20]

The United States District Court for the District of Massachusetts denied Wurie’s motion to suppress the evidence officers obtained from searching his cell phone.[21] The First Circuit held that the officers’ search of Wurie’s cell phone was a violation of the Fourth Amendment, and specifically stated “warrantless cell phone data searches are categorically unlawful under the search-incident-to-arrest exception, given the government’s failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence.”[22] The First Circuit continued by stating that the Supreme Court, when it decided the cases which set forth the search incident to arrest exception, “could not have envisioned a world a world in which the vast majority of arrestees would be carrying on their person an item containing not physical evidence but a vast store of tangible data—data that is not immediately destructible and poses no threat to the arresting officers.”[23] In reversing the district court, the First Circuit stated, “warrantless cell phone data searches strike us as a convenient way for the police to obtain information related to a defendant’s crime of arrest…without having to secure a warrant. We find nothing in the Supreme Court’s search-incident-to-arrest jurisprudence that sanctions such a ‘general evidence-gathering search.’”[24]

Riley v. California

Riley was suspected in a gang shooting and was stopped in his vehicle by officers.[25] A subsequent search of his car revealed two handguns, which were forensically tied to the earlier shooting.[26] Riley was arrested and his cell phone was seized; his cell phone records showed that his phone was used near the shooting location around the time the shooting occurred and contained pictures of Riley making gang signs.[27] The trial court denied Riley’s motion to suppress the evidence from his vehicle search and from his cell phone search.[28]

People v. Diaz, a California Supreme Court case, controlled the Court of Appeals for the Fourth District’s ruling.[29] Diaz held that warrantless searches of cell phones were permissible because attempting to define a container as “worthy” or “unworthy” exceeded the bounds of the Fourth Amendment.[30] The California Supreme Court further stated that the storage capacity of an item was irrelevant.[31] Riley followed the precedent set forth by Diaz, and resulted in the Fourth District affirming the denial of Riley’s motion to suppress.

Possible Outcomes

Hopefully, the Court will issue a concrete ruling after it hears oral arguments on the issue of whether a search warrant is needed before officers search an arrestee’s cell phone, which will provide guidance to police officers. The Court may take the approach of the majority of circuit courts and find that a cell phone is a container, which can be searched incident to arrest so long as the search is limited in scope and contemporaneous to the arrest. Or, the Court may take the approach of the First Circuit in Wurie and find that the privacy interests in an individual’s cell phone greatly outweigh the government’s need to immediately search a cell phone without first securing a warrant. The Court may take other approaches and rule that officers are only permitted to seize cell phones incident to arrest and are prohibited from searching them until there is a warrant. Another approach is that officers can only search cell phones when there is reason to believe that there is evidence of the crime on the cell phone, which falls in line with the Court’s recent decision in Arizona v. Gant.[32] Whatever ruling the Court chooses to adopt will have a substantial impact on police officers and citizens alike, either by significantly restricting the types of searches that can be performed or by significantly imposing on an individual’s privacy rights.

[1] U.S. Const. amend. IV.

[2] United States v. Robinson, 414 U.S. 218, 224 (1973).

[3] 395 U.S. 752, 762–63 (1969).

[4] Id.

[5] United States v. Curtis, 635 F.3d 704, 711–12 (5th Cir. 2011).

[6] See United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996); United States v. Watson, 669 F.2d 1374, 1384 (11th Cir. 1982); United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993).

[7] See Silvan W. v. Briggs, 309 F. App’x 216 (10th Cir. 2009); United States v. Finley, 477 F.3d 250 (5th Cir. 2007); United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012); United States v. Murphy, 553 F.3d 405 (4th Cir. 2009).

[8] United States v. Wurie, SCOTUSblog, http://www.scotusblog.com/case-files/cases/united-states-v-wurie.

[9] Greg Stohr, Mobile-Phone Searches by Police Get Top U.S. Court Review, Bloomberg, (Jan 17, 2014) http://www.bloomberg.com/news/2014-01-17/mobile-phone-searches-by-police-get-top-u-s-court-review.html.

[10] United States v. Wurie, 728 F.3d 1,1 (1st Cir. 2013).

[11] Id.

[12] Id.

[13] Id. at 2.

[14] Id.

[15] Id.

[16] Wurie, 728 F.3d at 2.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Wurie, 728 F.3d at 12.

[23] Id. at 12.

[24] Id. at 13.

[25] People v. Riley, D059840, 2013 WL 475242 (Cal. App. 4th Dist. Feb. 8, 2013).

[26] Id. at *1.

[27] Id. at *2.

[28] Id.

[29] Id. at 6.

[30] People v. Diaz, 244 P.3d 501, 507 (Cal. 2011).

[31] Id. at 95.

[32] 556 U.S. 332 (2009).

2 thoughts on “Unbridled Discretion: Should Warrantless Searches of Cell Phones be Permitted Under the Fourth Amendment?

  1. johnbryanlaw April 14, 2014 at 3:19 pm Reply

    Thanks for the well-written post. The cell phone issue is an important aspect of Fourth Amendment law which really needs to be addressed. Protections should not decrease as technology increases.

  2. […] seized can the officers go through the phone without first obtaining a warrant?  There is a very well written post on this topic from the Alabama Civil Rights and Civil Liberties Law Review blog, written by Lacy […]

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