Warrants Required to Search Phones?

Category: Mobile

You get pulled over for speeding, and officer demands that you hand over your cell phone, so he can check to see if you were yacking or texting while driving. Are you justified in saying 'Show me the search warrant'? Read on to learn how the U.S. Supreme Court just ruled on this matter...

Do Police Need a Warrant to Search Your Phone?

Yes, police do need a warrant to search your cell phone – usually – the U. S. Supreme Court ruled on June 25, 2014. The unanimous decision in Riley v. California is a landmark victory for privacy rights and the 4th Amendment, but not a total ban on warrantless searches. Here are the details:

Police, of course, are keenly interested in the names of the people in that phone's contact list, and any pattern of communication between the accused and their associates. Such information can help police build a case, and even implicate others involved in a crime. The case of record, Riley v. California, also included a different case, United States v. Wurie. The Riley case involved a smartphone while Wurie involved a flip phone. The data stored on Riley’s smartphone was searched and some it was used to convict him. Police used incoming calls to Wurie’s phone to convict him.

Can Police Search Your Phone?

The Court found that none of the traditional justifications for warrantless searches of “papers and effects” found on or within reach of an arrestee apply to cell phones. The data on a phone poses no threat to officer safety. Once a phone is in police custody there is no need to search its contents in order to preserve any evidence that may be on it.

The also government tried to argue that, because it is possible to “wipe” a phone remotely, a thorough search of a phone’s contents as soon as possible is essential. But the Court noted that there are many less intrusive ways to preserve evidence against remote wiping: simply turning off the phone; removing the battery; or putting the phone in a Faraday bag made of metallized fabric, which blocks radio waves.

The Court emphasized that cell phones are different from the usual tangible objects that might be found on an arrestee’s person. The huge storage capacities of modern phones “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” wrote Chief Justice John Roberts.

Far Reaching Implications

He also noted that data viewable on a phone is not necessarily stored on the phone, but may be on a remote server that most certainly is not “incidental to an arrest.” Police do not automatically get the right to search your home upon arresting you at work; they don’t get the right to search your Dropbox folder upon arresting you with a smartphone in your possession, either. Such searches require a warrant.

The Wurie case resulted in additional privacy protections. The Court ruled that police who seize a cell phone incidental to an arrest do not have the right to intercept subsequent incoming calls in order to gather incriminating evidence, unless they first obtain a warrant to do so. Already, legal pundits are speculating that this part of the ruling has implications for the NSA’s monitoring of domestic phone traffic.

But the Court still left open to police the “exigent circumstances” exception to the 4th Amendment. When there is a compelling government need to search a phone or intercept incoming calls and there is no time to obtain a warrant, then warrantless searches of both kinds are permissible. An example might be a case in which a phone can reasonably be expected to hold evidence that could lead to a kidnapping victim in need of immediate rescue, or to the location of a bomb that might go off at any second.

I think we can expect to see some “creative” examples of “exigent circumstances” offered by police in the wake of this ruling – trumped-up charges that will complicate the defense of accused parties unjustly. But overall, it’s a tremendous victory for privacy rights.

Laptops, Tablets, iPods?

And what about other mobile devices? Disappointingly, the Court addressed only cell phones, not tablets or laptops or iPods. But they can hold as much data as phones, or more, and they can be used for voice or other types of real-time telecommunications. And sometimes it's hard to tell a phone from a tablet, with the advent of the "phablet" -- hybrid phone/tablet devices.

Furthermore, the U.S. Congress or the State legislatures can pass legislation specifically authorizing warrantless searches of digital devices found on arrestees incidental to arrest, according to Justice Samuel Alito’s concurring opinion. We may see such legislation introduced in the wake of Riley v. California.

Should police be able to search your phone without a warrant? Your thoughts on this topic are welcome. Post your comment or question below...

 
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Most recent comments on "Warrants Required to Search Phones?"

Posted by:

Brian S.
01 Jul 2014

In states that have statutes against the use of cell phones while driving, all an officer has to do is pull you over and accuse you of using your cell phone while driving, whether you were or not. (Not that there are any crooked cops out there that would do so.) Does that automatically give them the right to search for the evidence to prove their case?


Posted by:

IanG
01 Jul 2014

Before reading your article, Bob, I had never given any thought to this subject - being the blameless, innocent, clean-living person that I am ;)
I can see that where serious offences are being investigated e.g. murder, terrorism, rape etc, that the police may have justification for wanting to search your mobile devices for evidence. But I'm sure that the police will find ways round the legislation by observing that the person being searched or investigated, had been 'acting suspiciously'. And after the event, it won't help the complainant's case much and their privacy will have already been violated.


Posted by:

bart2201
01 Jul 2014

No the police should not be allowed to search your cell phone simply because they have caught you breaking a minor traffic violation or any other misdemeanor charge. They are not allowed to check all of your calls on your home phone without a warrant nor are they allowed to make a record of who you talk to unless it is a specific part of a felony warrant and the calls are part of the commision of the crime.


Posted by:

TonyS
01 Jul 2014

Americans seem obsessive about perceived protection of information/privacy.
As an innocent person has nothing to hide, is it reasonable to assume that all Americans are not law abiding?


Posted by:

RichF
01 Jul 2014

It seems silly that the police would need a warrant since they could probably get any info they want off the device from the NSA.


Posted by:

Dave J
01 Jul 2014

Since texting while driving is actually more deadly than drunken driving, I feel that if an officer sees what he thinks is someone texting he should be able to stop them and verify whether or not they indeed were texting while in motion.
In our area it is a rather serious and expensive crime to be doing so.


Posted by:

Chuck
01 Jul 2014

The police have a difficult job to do. That said, they can be overreaching in trying to get a conviction. Oklahoma City had a CSI that would make the evidence fit the DA's case. She was fired, after a number of years, but never did any time. I've seen cases where someone took their computer in for repairs and the computer repairer found child porn on the computer and the person was arrested and convicted. I would never defend a pervert, I think they should all be locked up. But at the same time I'm left wondering how did the repairman find the pictures. Do they just go wondering around your files? Talk about privacy issues, your whole life is on your computer and some stranger is looking at everything. Maybe even making copies to review later. This is one of the reasons I value this newsletter so much. Nothing to hide, but don't want other people in my business.


Posted by:

Heather
01 Jul 2014

I haven't discussed this ruling with my son-in-law, he's sure to have an opinion as a federal investigator for a major agency (not the FBI). However, I think the court was right on this ruling and the extra protections it included, regarding interception of incoming calls. I know that I have seen that used on the COPS show as well as on police dramas.

I think if you're in a car with someone you don't know well and they're stopped you should turn off my phone immediately, unless you plan to video the incident (which may serve to escalate it).


Posted by:

Frank
01 Jul 2014

What about ICE info? I put that on my phone so it can be seen.


Posted by:

Art Frailey
01 Jul 2014

In my opinion if you are searched for anything that does not pertain to the reason for suspicion should not be allowed. Example, you are pulled over for a traffic violation, such as running a red light. You should not be required to let them search your phone to see if you were gabbing/texting while driving. But if you were seen doing this, and you were pulled over, then yes, it should be required.
Of course it would be common since, if you ran a red light, and it is obvious you are drinking or drunk, that a search is not even required, the officer can just take you in.
Incidentally, I am pretty certain that phone calls of all kinds are still recorded by the phone companies. If needed, they could get a warrant to search your record.


Posted by:

Alfie
01 Jul 2014

NO! Not at all. Warrants are easy to get, so the police should follow the law. Warrants aren't much of an impediment.


Posted by:

Tony
01 Jul 2014

Search without warrant to me is a most vexed question and in the final wash-up my personal viewpoint is somewhat akin to the adage 'extraordinary claims require extraordinary proof' and within the scope of the discussion can be amended to 'extraordinary crime require extraordinary controls'.

Perhaps a non sequitur however in an age where all types of crimes against the person and indeed the state appear to be increasing at an alarming rate (if statistics are to be trusted) logic seems to suggest that drastic action needs to be taken if we are to protect our democracy against wrongdoers.


Posted by:

HA
01 Jul 2014

Searching the bad guys phones, computers, etc., to keep me safe sounds fine to me.


Posted by:

bob price
01 Jul 2014

What if you see someone texting while driving and they crash into you? In the 'old days' the cop could look at the phone and quickly know. Now they can't do that? It' erased before the warrant is issued?


Posted by:

Buffet
01 Jul 2014

NOBODY touches my property - IF they wanna stay in one piece!~


Posted by:

Doug
01 Jul 2014

I love these .. "if you have nothing to hide idiots" ... they have no concept of law, justice or freedom . He who has no sin ... is a liar.
Anywho ... if they suspect phone use while driving , simple , issue a ticket and deal with it in court. Warrants are definitely needed and so the judges "unanimously" and rightly ruled.
Do these idiots not understand that that means even the Democraps and Repuklicans agreed.


Posted by:

RandiO
02 Jul 2014

I wonder who is going to decide who the 'bad' and the 'good' guys are? I wonder 'if having nothing to hide' would mean that they can just walk right into your house? I wonder if those who ask NSA not to spy on them actually go "spy" at facebook! I know I wonder too much! I was saddened that the Supreme Court decision was NOT unanimous and the verdict is truly ambiguous!
But I gots the fone problem licked at the stem! They don't need no stinkin' warrants in my case; 'cuz I be refuzing 2 own 1 of dem dar gizmos!


Posted by:

RandiO
02 Jul 2014

Open Letter to Doug and his post just above mine: If you and I think differently than those who feel and believe "they have nothing to hide" and those who are "willing to give up some privacy and some freedom to obtain some perceived safety" really does NOT mean that we are at a capacity to call them 'idi*ots"! After all, we are all Americans and partners in this great society. Diversity makes us a great nation but to flame other Americans for the way they think is more wrong than name calling your kin-folk. There has got to be a better way to handle such situations w/o resorting to such confrontational tactics. I beg of you to keep it civil in the future! Please!


Posted by:

MmeMoxie
09 Jul 2014

@Randi0 ... Thank you, I was going to do the same thing, to remind others, that all opinions are allowed on Bob's site. If, the comment is really, really bad ... I think, Bob will not post it. I am NOT talking about censorship ... But, comments that are full of expletives or so poorly written, that NO one could understand it.

Randi0, your are very articulate, well versed and knowledgeable, and I usually agree with what you have to say, on all subjects. There have been times, where we have disagreed, but, that is the nature of the beast, when discussing timely topics, like this one.

100 Atta-Boys to you, Randi0, for saying what needed to be said.


Posted by:

John R
13 Aug 2014

Once again the Justice Department vs. Law Enforcement, Law Enforcement loses. Unfortunately it is the fault of Law Enforcement. If Law Enforcement could be trusted to use only that information which is directly related to the crime in question, then they would not face resistance from the Justice Department or the General Public for the most part. Law Enforcement personnel almost always find out things or see things that are in fact none of their business, and most certainly have nothing to do with the ongoing investigation. Yet they reveal those things, they give the information to other parties and they do not handle the information with the respect it deserves. As a result they should need to prove to the Justice Department they have reasonable cause and obtain a search warrant for most everything they wish to examine. Which is not to say the Justice Department is trust worthy? Every Citizen should always remember that every Governmental Agency and I do mean every agency, right down to the Local Animal Control Department does not warrant any trust to any degree, until it has proven, case by case, that it can be trusted.


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