Warrants Required to Search Phones?
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.
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...
This article was posted by Bob Rankin on 1 Jul 2014
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