In June, the U.S. Supreme Court limited police officers’ ability to search an arrestee incident to an arrest. The decision results from two cases where law enforcement used information obtained from a cell phone search incident to an arrest. Writing for a unanimous court, Chief Justice Roberts said that when it comes to locating cell phones on a person who is lawfully arrested, police officers must obtain a warrant to search the information located on the cell phone.
The Facts
The first case, Riley v. California1 , involved a traffic stop of David Riley for an expired vehicle registration. During the stop, the officer learned that Riley was driving on a suspended driver’s license. After impounding Riley’s vehicle pursuant to the department’s policy, another officer conducted an inventory search which revealed two handguns under the car’s hood. Riley’s person was also searched incident to his arrest. That search uncovered items associated with the “Bloods” street gang and a smart cell phone.
The officer searched the contents of the smart phone and found it had the initials “CK”—a label the officer believed stood for “Crip Killers,” another name for the “Bloods”—throughout Riley’s phone. Two hours later, a department gangs specialist also searched the phone and found photographs of Riley standing in front of a vehicle police suspected had been involved in a shooting a few weeks earlier. As a result, Riley was charged with several crimes in connection with that earlier shooting.
At trial, Riley moved to suppress the evidence the police obtained from his cell phone arguing that the search of his phone was conducted without a warrant or in the absence of exigent circumstances. The trial court denied the motion and officers were permitted to testify about the photographs and other evidence found on the phone. Riley was convicted.
Riley appealed. The California Court of Appeal upheld the conviction relying on the state’s supreme court decision in People v. Diaz2 which held that the Fourth Amendment allows warrantless searches of cell phones incident to an arrest as long as the cell phone was immediately associated with the arrestee’s person. The California Supreme Court denied Riley’s petition for review.
The second case, United States v. Wurie3 , involved the surveillance by police officers of Brian Wurie who was selling crack cocaine from his car. He was arrested and taken to the police station. A search of Wurie’s person incident to his arrest turned up a flip phone. Approximately 10 minutes after arriving at the station, Wurie’s phone kept receiving calls from a number identified as “my house.” Officers opened the phone and observed a photo of a woman and a baby set as the phone’s wallpaper. They pressed a button to access the call log and then another to determine the phone number associated with the “my house” label. Afterward, they used a phone directory to trace that phone number to an apartment building.
Officers went to the building and observed Wurie’s name on the mailbox and saw through a window a woman who resembled the woman in the photograph on Wurie’s phone. Officers secured the apartment as a search warrant was sought. Later, during the execution of the warrant, officers located and retrieved 215 grams of crack cocaine, marijuana and a firearm. Wurie was charged with additional crimes as a result of that search.
Wurie moved to suppress the evidence obtained from the search of the apartment arguing that it was the result of an unconstitutional search of his cell phone. The district court denied the motion and Wurie was convicted. On appeal, a divided First Circuit Court of Appeals reversed the conviction holding that warrantless cell phone searches are unlawful because of the amount of data they can hold and the government’s failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence.
The U.S. Supreme Court granted certiorari in both cases.
Searches Incident to Arrest
No doubt, the Fourth Amendment requires that any search must be reasonable. In general, reasonableness requires a search warrant or a specific exception to the warrant requirement. One of those exceptions is the search incident to an arrest.
Acknowledging that searches incident to an arrest have been recognized for a century, the Supreme Court noted in Riley that the scope of such searches has been debated for nearly as long. Indeed, it highlighted three particular cases that established the framework for searches incident to an arrest.
In the first case, Chimel v. California4, police officers arrested Chimel inside his residence and searched his entire house including the attic and the garage. During the process, they also looked inside cabinet and dresser drawers. The Supreme Court held that “when an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape … In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent the concealment or destruction … .”5 The Court then stated that officers are permitted to search the arrestee’s person and the area “within his immediate control” or the area from within which he could access a weapon or destructible evidence.6 Applying the rule to the facts, the Court found that the warrantless search of Chimel’s residence did not fit within the exception.
In the second case, United States v. Robinson7, the Supreme Court applied the Chimel analysis in the context of a search of an arrestee’s person. There, a police officer arrested Robinson for driving on a revoked license. The officer conducted a patdown search and felt an object that he could not identify in Robinson’s coat pocket. The officer removed the object which turned out to be a cigarette package. The officer opened it and found heroin. The Supreme Court stated that “the authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.”8 Instead, “a 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.”9 The Court then found the search was reasonable despite the fact that there was no concern about the destruction of evidence or whether Robinson might be armed.
In the third case, Arizona v. Gant10, the Court analyzed Chimel in the context of automobile searches. The Gant court held that police officers are permitted to search vehicles incident to an arrest “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.”11 It added, however, that vehicles can still be searched “when it is reasonable to believe evidence relevant to the crime of the arrest might be found in the vehicle” due to “circumstances unique to the vehicle context.”12
The Supreme Court Opinion
The question before the Court was how the search incident to an arrest applies to modern cell phones. Surely, the strict application of Chimel and Robinson to the search of cell phones found on a suspect’s person during a lawful arrest dictates that the search would be reasonable. In other words, Robinson permits officers to conduct searches of the physical objects found on the suspect’s person in order to disarm them or prevent the destruction of evidence.
Not so according to the Court. Digital data stored on today’s cell phones cannot itself be used as a weapon to harm an arresting officer. Indeed, officers can inspect the physical aspects of the phone once it is secured.
How then were officers justified in searching the interior package of cigarettes in Robinson? According to the Court, the officers in Robinson did not know what was inside the cigarette carton; they just knew they weren’t cigarettes. On the other hand, the officers in Wurie knew exactly what they would find when they searched Wurie’s flip phone—data—which cannot endanger anyone.
With respect to the interest of preventing the destruction of evidence, the Court said that once officers secure a cell phone, there is no longer any risk that the arrestee himself would be able to delete or otherwise destroy any evidence from the phone.
The Arrestee’s Privacy Interest Prevails
The Court went on to acknowledge that the search incident to arrest exception not only considers the government’s interest in protecting law enforcement officers and preventing the destruction of evidence, it also rests on the arrestee’s diminished privacy interests once he is taken into custody. Robinson focused on the government’s interest and not so much on the privacy interest of the arrestee. Indeed, the Court found that Robinson suffered only a minimal intrusion when he was patted down and the cigarette pack inspected.
That being said, the Court in Riley cautioned that just because an arrestee has a diminished privacy interest, the Fourth Amendment does not fall by the way side. Indeed, not every search “is acceptable solely because a person is in custody.”13 Take for example, the facts in Chimel. There, Chimel was in custody when officers conducted a search of his residence, but the Court found that the top to bottom search of his home required a warrant.
Distinguishing the data found on cell phones from physical objects that can be found on an arrestee’s person, the Court in Riley stated that cell phones have the capability to store massive amounts of data that in the past would have been stored on cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers. Indeed, all aspects of a person’s life can be learned from a simple review of a person’s cell phone. As such, the Court found that a search of a cell phone’s data is dissimilar to the brief physical search considered in Robinson.
The Court recognized that privacy comes at a cost knowing that its decision would impact the ability of law enforcement to catch criminals. However, the Court’s holding does not mean that cell phones can never be searched. Indeed, it found that cell phone data can be searched pursuant to a warrant or other exception to a warrantless search such as exigent circumstances.
The Bottom Line
Riley dictates that police officers are no longer permitted to search the contents of an arrestee’s cell phone found on his person as part of a search incident to an arrest. While not specifically addressing other digital items, officers should also not search incident to an arrest the arrestee’s Ipod, Ipad, tablet, laptop or other similar items unless, of course, officers have a warrant or other exceptions to the warrantless search exist.
References
1. No. 13-132, 573 U.S.(2014).
2. 51 Cal. 4th 84, 244 P.3d 501 (2011).
3. No. 13-212, 573 U.S. (2014).
4. 395 U.S. 752 (1969).
5. Id., at 762-763.
6. Id.
7. 414 U.S. 218 (1973).
8. Id., at 235.
9. Ibid. (emphasis added).
10. 556 U.S. 332 (2009).
11. Id., at 388.
12. Ibid.
13. Maryland v. King, 569 U.S. (2013).