Should Police Get a Warrant Before They Search a Cell Phone?

 

shutterstock_188124092My latest contribution over at PJ Media concerns two cases now before the U.S. Supreme Court. Both cases, Riley v. California and United States v. Wurie, involve warrantless searches by police on cell phones seized from people who had been arrested. Current case law allows officers to examine the property of people they have arrested, which sometimes leads to the discovery of incriminating evidence. Such was the fate of Mssrs. Riley and Wurie.  The former had his conviction upheld through appeal while the latter’s was overturned, setting the stage for the Supreme Court to resolve the conflict.

But how should the police deal with the cell phone found on an arrestee? Should  cell phones, owing to the vast amount of personal information often stored on them, be accorded more protection than a wallet, a notebook, or anything else a person might carry? If you think it should be, what legal precedent would you apply? And if there is no established precedent, should it be left to judges to create one, or should it be left to the legislative process?

Read the column here, then come back and weigh in with your comments.

There are 46 comments.

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  1. Metalheaddoc Member
    Metalheaddoc
    @Metalheaddoc

    My concern is less with the serious criminal than with with the ordinary person. During a traffic stop, can the cops take a phone in plain sight and search it? Download the call log, the GPS tracking data, the photos, social media posts to go on a fishing expedition for any crime at all? Its one thing if the seized item (notebook, phone, etc) is directly relevant to the crime being investigated, but my concern is with the search for any potential crime at any time ever. Isn’t the general rule that searches need to be specific and with probable cause?

    • #1
  2. Guruforhire Member
    Guruforhire
    @Guruforhire

    The 4th amendment says it all.

    One can be arrested arbitrarily for anything, and that should not allow law enforcement to bootstrap themselves into anything they want.

    https://www.youtube.com/watch?v=xcd9NI9fgW8

    • #2
  3. user_1029039 Member
    user_1029039
    @JasonRudert

    I think your analysis  is correct, as the law stands. I agree that the remedy should be legislative.
    If it were my vote as a legislator, I’d protect the cell phone’s contents, because they all have the ability to be locked with a password. By doing so, the owner is declaring that to be a private space that’s locked up just like his house or safe deposit box. You should need a warrant.
    I’m inclined to say I don’t have a lot of sympathy for people engaged in criminal acts, who then use the technology in their hands to record those crimes. But the reason I am inclined to protect the videos and txts, etc is that sooner or later, we are all going to be carrying around evidence of a crime in our phones, just because so many new things have become crimes. And  more will be added. Whether it’s washing your car on the wrong day, or taking naked pix of your own children, we are all building a case against ourselves for something or other all the time.

    • #3
  4. douglaswatt25@yahoo.com Moderator
    douglaswatt25@yahoo.com
    @DougWatt

    “A warrant is not required for a search incident to a lawful arrest, the seizure of items in plain view, a border search, a search effected in open fields, a vehicle search (except for the trunk), an inventory search of an impounded vehicle, and any search necessitated by exigent circumstances. It is also not required for a Stop and Frisk, a limited search for weapons based on a reasonable suspicion that the subject has committed or is committing a crime. A police officer may also conduct a warrantless search if the subject consents.”

    Cell phone is found in Suspect A’s vehicle incident to a lawful arrest. Seizure of the phone is lawful. Suspect A names an accomplice. You want evidence to build a case against Suspects A and B. You have moved beyond probable cause to reasonable suspicion with the admissions of Suspect A. If I was the officer that had made the arrest I would call the judge to obtain the warrant to examine the contents of the phone. The seizure of the phone was lawful and the admissions of Suspect A should be enough to obtain a warrant to search the phone for evidence against both suspects.

    • #4
  5. Devereaux Member
    Devereaux
    @Devereaux

    Guruforhire:

    The 4th amendment says it all.

    One can be arrested arbitrarily for anything, and that should not allow law enforcement to bootstrap themselves into anything they want.

     Exactly!

    • #5
  6. Devereaux Member
    Devereaux
    @Devereaux

    Doug Watt:

    Cell phone is found in Suspect A’s vehicle incident to a lawful arrest. Seizure of the phone is lawful. Suspect A names an accomplice. You want evidence to build a case against Suspects A and B. You have moved beyond probable cause to reasonable suspicion with the admissions of Suspect A. If I was the officer that had made the arrest I would call the judge to obtain the warrant to examine the contents of the phone. The seizure of the phone was lawful and the admissions of Suspect A should be enough to obtain a warrant to search the phone for evidence against both suspects.

     And other than this is very easily seen as “fishing”.

    • #6
  7. DocJay Member
    DocJay
    @DocJay

    I’m fine with phones being seized during an arrest but no searching without a warrant.   Our nation is filled with lawless slime, but enough of our politicians.   I’m sure the balance can be struck here.   As our nation sinks in to the abyss we will need cops more than ever but we sure need them to respect the constitution also.

    • #7
  8. The King Prawn Member
    The King Prawn
    @TheKingPrawn

    Without having ever personally encountered the criminal justice system people’s opinions on any action performed by it are invalid.

    • #8
  9. Jack Dunphy Contributor
    Jack Dunphy
    @JackDunphy

    DocJay:

    I’m fine with phones being seized during an arrest but no searching without a warrant. Our nation is filled with lawless slime, but enough of our politicians. I’m sure the balance can be struck here. As our nation sinks in to the abyss we will need cops more than ever but we sure need them to respect the constitution also.

     But if I can search your wallet or your address book or anything else you might be carrying when I arrest you, under what principle should I be forbidden from searching your phone, assuming it’s not password protected?

    • #9
  10. Instugator Thatcher
    Instugator
    @Instugator

    Jack, I think the Supremes made an error in the past when they allowed the search of the wallet.

    From the 4th Ammendment:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    I would argue that a wallet is an ‘effect’ distinct from ‘papers’. But the purpose of both is to retain personal information. Today, my cell phone performs largely the same storage function as my house, paper(s) or effects. While I cannot fault a Supreme court from the previous century from failing to properly decompose what our founders have considered to be either “persons, papers or effects” I would expect our legislature to update. I think Clarence Thomas says it best when he is willing to overlook ‘stare decisis’ in favor of the plain text of the Constitution.

    The data on my cell phone would be considered “papers and effects” because it contains my banking documents, address book,  my video rentals, etc.

    • #10
  11. Franco Member
    Franco
    @Franco

    Jack Dunphy: But if I can search your wallet or your address book or anything else you might be carrying when I arrest you, under what principle should I be forbidden from searching your phone, assuming it’s not password protected?

     Because it’s none of your f******* business.

    • #11
  12. Eeyore Member
    Eeyore
    @Eeyore

    “…we call in uniformed officers in a marked car to make a traffic stop. He pulls over immediately and complies with directions to exit the car. You and I then search the car…”
    Did the guy consent to the search? In one of those “Don’t Give Up Your Rights” videos online, the subject gets out of his car and closes and locks the door behind him. Can you do a warrantless search on a traffic stop in your jurisdiction without the driver’s permission? 
    In practical terms, if Instugator doesn’t get his way, and they continue to allow some warrantless search, perhaps the phone-search line is password protection. It might be comparable to the discovery of a locked box in a vehicle during a warrantless search. Do you have to procure a warrant, or can you just jimmy it open?
    Of course this is stipulating that you can search the phone warrantlessly in the first place, which I’m not sure I’m willing to acknowledge.

    • #12
  13. DocJay Member
    DocJay
    @DocJay

    I don’t have a legal answer Jack, it feels wrong though.    Any situation that involves a serious crime seems enough to warrant a warrant.

    • #13
  14. douglaswatt25@yahoo.com Moderator
    douglaswatt25@yahoo.com
    @DougWatt

    Eeyore:

    “…we call in uniformed officers in a marked car to make a traffic stop. He pulls over immediately and complies with directions to exit the car. You and I then search the car…” Did the guy consent to the search? In one of those “Don’t Give Up Your Rights” videos online, the subject gets out of his car and closes and locks the door behind him. Can you do a warrantless search on a traffic stop in your jurisdiction without the driver’s permission?

    In a traffic stop that’s incident to an arrest for a crime you do not need the owners or the drivers permission to search the car. A stop for a traffic violation is different than a stop for a crime. There are traffic crimes reckless driving, attempt to elude, and DUII to name a few. Your car can be searched without a warrant if the traffic stop concerns a traffic crime. As far as the “Know your rights videos” unless the producers state that if you follow their instructions and are arrested they will post your bail and provide you with free legal representation I’d be careful. 

    • #14
  15. Eeyore Member
    Eeyore
    @Eeyore

    Thanks, Doug

    • #15
  16. Nick Stuart Member
    Nick Stuart
    @NickStuart

    Password protect your phone, make sure you have it backed up so you can restore the contents and apps to a new phone if it’s confiscated.

    • #16
  17. iWc Coolidge
    iWc
    @iWe

    I listened to some of that Supreme debate on C-Span, and it made my blood boil. The Justices kept referring to the person under arrest as “the criminal.”

    Huh? What happened to a presumption of innocence? 

    As others have pointed out, police can arrest you for basically anything. That does not make you a criminal.

    • #17
  18. iWc Coolidge
    iWc
    @iWe

    The other thing that made me livid about the oral arguments before the Supremes was the argument that police needed to search the phone for their own protection! After all, apparently someone once called his friends to come and attack the police – so the officer needs to check the phone to see if he needs to call for backup.

    This kind of argument is infuriating! I am quite sure that police accidentally shoot many more civilians than civilians  shoot police officers (accidentally or not). If police safety is actually the primary goal of their existence, they should all retreat behind high walls where they will be safe, and leave the rest of us the heck alone.

    • #18
  19. The King Prawn Member
    The King Prawn
    @TheKingPrawn

    iWc: Huh? What happened to a presumption of innocence? 

     Presumption of innocence may be technically true, but once an arrest is made it becomes impossible to treat people as innocent in reality. 

    • #19
  20. Jimmy Carter Member
    Jimmy Carter
    @JimmyCarter

    DocJay: As our nation sinks in to the abyss we will need cops more than ever

     I don’t think so. Our nation is sinking because We’ve given up the idea of Independence; Independence meaning taking care of Ourselves. Cops are glorified maids (clean up after the fact) that collect taxes.

    • #20
  21. iWc Coolidge
    iWc
    @iWe

    The King Prawn:

    iWc: Huh? What happened to a presumption of innocence?

    Presumption of innocence may be technically true, but once an arrest is made it becomes impossible to treat people as innocent in reality.

     Justices should still not refer to the person as a “criminal”. They could use “suspect” or “arrestee” or somesuch. But “criminal” has a specific meaning, and supreme court justices ought to be sensitive to the difference. Especially as they are deciding the rights of privacy of those who are merely stopped for a perceived traffic violation.

    • #21
  22. The King Prawn Member
    The King Prawn
    @TheKingPrawn

    iWc:

    The King Prawn:

    iWc: Huh? What happened to a presumption of innocence?

    Presumption of innocence may be technically true, but once an arrest is made it becomes impossible to treat people as innocent in reality.

    Justices should still not refer to the person as a “criminal”. They could use “suspect” or “arrestee” or somesuch. But “criminal” has a specific meaning, and supreme court justices ought to be sensitive to the difference. Especially as they are deciding the rights of privacy of those who are merely stopped for a perceived traffic violation.

     At the SCOTUS level the person has been convicted by a jury of his peers, so the title might actually fit. 

    • #22
  23. iWc Coolidge
    iWc
    @iWe

    The argument of the attorney was:

    the fact of the arrest  necessarily and legitimately largely abates the privacy  interest of the individual and his person and anything he or she has chosen to carry on the person. … the consequence of carrying things on your person has always been that if you are arrested, the police will be able to examine that to see if it is evidence of crime.

    This gives police the leeway to search your cell phone (and your life) anytime they like, because they made an arrest. Cell phones increasingly will have just about all the data a person cares about.

    • #23
  24. iWc Coolidge
    iWc
    @iWe

    As Scalia said:

    that gets you into the arrest for, you know, for not wearing a seat belt, and it seems absurd that you should be able to search that person’s iPhone.

    Right on!

    • #24
  25. Arjay Member
    Arjay
    @

    DocJay:

    As our nation sinks in to the abyss we will need cops more than ever but …

     … they will increasingly behave like an occupying army.

    • #25
  26. douglaswatt25@yahoo.com Moderator
    douglaswatt25@yahoo.com
    @DougWatt

    Okay I’ve read a lot of replies to Mr. Dunphy’s question. Most of the replies have been emotional. Let me start with the basics.
    1. What is the difference between a violation and a crime?
    I’ll give you hint if you have been in traffic court for a violation why isn’t the room filled with lawyers?
    Buehler?, Buehler?, anyone?
    I am not going to answer my own question. I’ve seen a lot of so called expertise in some of the comments on the 4th Amendment, but the question I’m asking is pertinent to search and seizure. I’m patient I’ll check from time to time to see if anyone can answer the question.

    • #26
  27. iWc Coolidge
    iWc
    @iWe

    Doug Watt:

    Okay I’ve read a lot of replies to Mr. Dunphy’s question. Most of the replies have been emotional. Let me start with the basics.1. What is the difference between a violation and a crime? 

     Doug, I am sure you have super legal chops. But if Scalia can suggest that the law, the way the advocates want it interpreted, allows for an iphone search when someone is not wearing a seatbelt, then in practical terms, when a police officer takes an interest, there is NO difference between a violation and a crime in this respect. 

    The words I quote in comments 23 and 24 are not mine.

    • #27
  28. user_280840 Member
    user_280840
    @FredCole

    Jack Dunphy:

     

    But if I can search your wallet or your address book or anything else you might be carrying when I arrest you, under what principle should I be forbidden from searching your phone, assuming it’s not password protected?

     Because of the depth of the contents of a phone.  A wallet will have cash, cards, pictures, maybe  notes or documents.  An address book has names, phone numbers, maybe dates and times or other notes.  A phone can hold gigabytes of data and if connected to the cloud, far more.  It’d be like searching a wallet with 10,000 pictures in it.

    A phone can contain as much data as a man’s home.  If you arrest me in my home can you search my entire home?  And we’re not talking about a warrant search that specifies what you’re looking for, more of a general search.  There’s a term for that: a fishing expedition.

    No, Jack, nothing in your article precluded you from getting a warrant for your search.  “Warrant-less search” is a very dangerous phrase to liberty. 

    • #28
  29. Ken in CT Member
    Ken in CT
    @KeninCT

    Search incident to arrest is one of the recognized exceptions to the requirement for a search warrant. Anything on the person and/or within reach at the time of the arrest is subject to search. If the subject was carrying a briefcase full of printed e-mails, the e-mails would be searchable. Same for the cell phone. However, the person must be under arrest for search incident to arrest to be applicable.

    • #29
  30. Instugator Thatcher
    Instugator
    @Instugator

    See, I can see a difference between searching for a weapon as part of the arrest process and the spurious assertion that you need to rifle through his phone to see if he called for backup.

    So you secure his effects away from him, but it shouldn’t give you the authority to rifle though his belongings.

    • #30

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