5-cent explanation: Can police search the contents of an arrestee’s cell phone (text messages, pictures, videos, call records, etc.) during routine traffic stops?
10-cent explanation: Two cases, both related to the searches of cell phones – one involved a flip phone, the other a smart phone – were argued in front of the U.S. Supreme Court on April 29, 2014 that questioned whether police could look inside the contents of a person’s phone without a warrant.
David Riley and Brima Wurie of California and Boston, respectively, both were found guilty on felony charges after evidence taken from their cellular phones was linked to criminal activity. Wurie’s case is a bit different in that her phone was not a smart phone but a flip phone. Her call records led police to find pounds of illegal drugs in her home, which were taken without a warrant and used against her in court. Riley is the case getting the most attention in that his phone was a smart phone commonly used by people today.
Riley was pulled over for having expired license plates, placed under arrest, and found guilty of gang activity involving a shooting when pictures and videos connecting him to the crime were taken off his cell phone. Again, no warrant was served before police performed the search of his phone.
At question in both cases is whether the 4th Amendment protection from unwarranted searches clicks in when police perform what has become a common police procedure during a stop. In most cases, police need a warrant from a judge or magistrate before performing a search. However, a body of case-law supports exceptions to the warrant requirement, such as when an individual has been placed under arrest. In both these cases, the defendants were arrested. Precedents have established that the search of an arrested person, his/her property, and the contents of the vehicle are acceptable in order to ensure the safety of the officer and to secure any evidence. While a cell phone is likely to be on a person or inside the bag sitting on the passenger side seat, searching the contents of that phone (text messages, phone calls, pictures, Google searches, videos, Facebook posts, etc.) may trigger a 4th Amendment violation if a warrant is not procured prior to the search.
Securing the safety of police officers is a compelling factor that most will agree is paramount to their ability to serve and protect. The safety of the officers, and the public, may be compromised if the cell phone is used as a device to trigger a bomb or if data could be triggered remotely to wipe and destroy evidence. Deputy Solicitor General Michael Dreeben, who defended the police in both cases, vigorously defended these very real threats during the oral arguments. Dreeben tried to dissuade the Justices from thinking Farraday bags, a sealed bag police could put the phone inside that would block signals to the device, would work as a solution. Justice Sotomayor’s suggestion that the phone be set to airplane mode was shot down by Dreeben as well for being unrealistic and burdensome to police.
Justice Kagan was the most critical of the unwarranted searches during the oral arguments. Kagan expressed grave concerns about the potential for police to arrest a person for literally anything, giving them access to accused’s phone, and a window into their personal, private information in search of evidence that may or may not link them to the arresting crime. She pointed out the fact that it’s very common for people to walk around with medical, familial, and financial information in emails, text messages, and images on their phones and questioned whether by simply owning a smart phone we give up our privacy. Scalia seemed to agree that it was “absurd” that police should be able to search the contents of a phone for a minor offense.
The attorney for Riley, Jeff Fisher, took questions from Justices Kennedy and Alito on what sort exigent circumstances would prevent police from needing to get a warrant before performing the search of a phone? Time sensitive matters, according to Fisher, might negate a 4th Amendment violation, but he argued there wasn’t such an issue in the Wurie case as it was a traffic stop for expired plates that preceded the arrest – not the threat of a bomb.
Decision: 9-0 for both the defendants in these cases. The unanimous decision was summed up best by Chief Justice John Roberts, writing for the majority, – “Get a warrant.” Simple as that. In a decision we heard read from the bench, the justices articulated very real concerns about police gaining access to an abundance of personal info from a cell phone for something as innocuous as a traffic violation in their decision.
What did we learn from this case?
Fourth Amendment cases are just as complex and interesting as they’ve always been. Both cases have significantly different fact patterns and involved outdated and contemporary technologies, leading us to predict different decisions. Second, the Justices know way more about technology than we’ve previously given them credit for. Chief Justice Roberts dropped references to Facebook, Twitter, and Fitbits. His teenage kids must be clerking for him already. Finally, Scalia didn’t need to swoop in again as the champion of the accused. He’s done it before in the Jones GPS case in 2012 and the Kyllo thermal-imaging case in 2001, both tech-related cases involving searches.
Here is a link to the audio recording of the oral arguments.