Two recent petitions for certiorari were filed regarding whether the Fourth Amendment permits police officers to search all or some digital contents of an arrestee’s cell phone incident to arrest. Federal courts of appeal and state courts of last resort are divided on this issue. On July 30, 2013, a petition for certiorari was filed asking the Supreme Court to review a California Court of Appeal, Fourth District case, Riley v. California. On August 19, 2013 the U.S. Solicitor General submitted an amicus brief asking the Supreme Court to reverse the First Circuit Court of Appeal’s decision in U.S. v. Wurie. These cases are noteworthy since they touch on arrestee’s rights to their cell phone data and since the Fourth Amendment is a bedrock for privacy law in the United States.
In U.S. v. Wurie, the police confiscated the arrestee’s Verizon LG flip-phone and retrieved the phone number of an incoming call labeled “my house.” The police used that phone number to determine the arrestee’s residence and gather further evidence. In Riley v. California, the police searched the arrestee’s smartphone, made an extenstive search of its digital contents, and were able to gather evidence linking the arrestee to more serious crimes. In both instances, the police made the searches without a warrant pursuant to the search-incident-to-arrest exception to the Fourth Amendment that allows police officers to perform a class of searches that have been deemed potentially necessary to preserve destructible evidence or protect police officers.
The question of whether the search of cell phone data could ever be justified under the search-incident-to-arrest exception has come up in federal and state courts in the past, some finding that warrantless cell phone data searches are categorically lawful, others upholding a limited search. In Riley v. U.S., the California Court of Appeal held that because the cell phone was immediately associated with the arrestee’s person at the time of his arrest, the warrantless search was valid. The First Circuit joined at least two other state courts of last resort in creating a bright-line rule rejecting all warrantless cell phone data searches and declined to create a rule based on particular instances. In its amicus brief, the Solicitor General argued that even if cell phone data searches do not fall under the search-incident-to-arrest exception, the First Circuit erred in imposing a blanket prohibition.
Cell phone data searches struck the First Circuit as “a convenient way for the police to obtain information related to a defendant’s crime of arrest—or other, as yet undiscovered crimes—without having to secure a warrant.” In rendering its opinion, the court found that data contained on cell phones, such as photographs, videos, written and audio messages, contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records is highly personal in nature, would previously have been stored in one’s home, and reflects private thoughts and activities. Additionally, the court noted that certain applications, if installed on modern cell phones, provide direct access to the home by remotely connecting to a home computer’s webcam. Given the highly personal nature of the data and the scope of the search, potentially a home search, the court found that cell phone data is categorically different from otherwise allowable categories of searches incident to arrest.
The First Circuit rejected the government’s argument that the cell phone data search was necessary to prevent evidence from being destroyed by remote wiping before a warrant issued. The First Circuit noted that the police have evidence preservation methods, such as removing the phone’s battery, turning off the phone, placing the phone in a device that blocks external electromagnetic radiation, or by making a mirror copy of the phone’s entire contents. Unlike other circuits, the First Circuit viewed the “slight and truly theoretical risk of evidence destruction,” a risk that was “‘remote’ indeed,” as insufficient when weighed against the “significant privacy implications inherent in cell phone data searches.” In its amicus brief, the Solicitor General argued that cell phone searches are more critical to preserving extractable evidence than previously allowed searches since co-conspirators could remove data remotely.
The First Circuit also rejected the government’s argument that searches of items carried on one’s person are justified since the arrestee had a reduced expectation of privacy caused by the arrest. This was the basis for the California Court of Appeal’s decision in Riley. The Solicitor General tried to revive this argument in its amicus brief. The First Circuit rejected this argument since at the time of the precedent cited, the court “could not have envisioned a world in which the vast majority of arrestees would be carrying on their person an item containing not physical evidence but a vast storage of intangible data—data that is not immediately destructible and poses no threat to the arresting officers.” Allowing police to search such data at the time of arrest would create, in the court’s view, “a serious and recurring threat to the privacy of countless individuals.”
In making its categorical ban on warrantless cell phone data searches under the search-incident-to-arrest exception, the First Circuit noted that the exigent circumstances exception to the Fourth Amendment warrant requirement might apply where the police have probable cause to believe that the phone contains evidence of a crime, as well as a compelling need to act quickly, that makes it impractical for them to obtain a warrant.