Cell Phone Searches

by Charles Gillingham

EVERYTHING YOU HAVE READ OR UNDERSTAND ABOUT SEARCHES INCIDENT TO ARREST OF A CELL PHONE (OR DIGITAL DEVICE) JUST CHANGED.

On June 25, 2014 the U.S. Supreme Court in, Riley v. California, 573 U.S. (2014) issued a sweeping decision overturning California's rule of allowing searches incident to arrest of cell phones. The California Supreme Court in People v. Diaz 51 Cal.4th 84 (2011) allowed for a search incident to arrest of a cell phone within 90 minutes of arrest. Officers are now required to obtain a search warrant (or obtain consent) to search ANY information on a cell phone. This is a significant change and obviously puts a major impediment to the investigation of crime. The Supreme Court was very clear to allow officers to secure a phone and prevent remote wiping or other destruction of evidence, but equally clear that any search requires a warrant or consent.

FACTS

The facts are not altogether that relevant other than that the suspect was stopped on a traffic violation, which lead to his arrest on a weapons violation. The search incident to arrest revealed a cell phone in his pocket. A search of the phone lead to discovery of gang indicia and photos and videos, located in the digital content of the phone. Based on that discovery Riley was arrested for, charged with, and convicted of a homicide.

In a companion case, also decided on June 25, 2014, officers accessed a suspect's phone incident to arrest and found information in the contacts of the phone that lead to the issuance of a search warrant and arrest and conviction on drug charges.

MOTION TO SUPPRESS

Both defendants moved to suppress the evidence found on the phones incident to arrest. The lower courts denied the motion. The U.S. Supreme Court took the case to settle the law in this area as there were at least ten published decisions on searches incident to arrest regarding cell phones.

HOLDING

The U.S. Supreme Court held that officers MUST either obtain a search warrant or have consent to search ANY digital information on a cell phone seized from a suspect who has been arrested.

The Court held that a cell phone today is a "mini-computer," with a significant amount of personal information contained therein. As such, in the digital age, a search of the information on a cell phone is not the same as a brief physical search incident to arrest.

The Court analyzed the reasons for searches incident to arrest: a search for items that might cause harm to an officer or effectuate the suspect's escape. The Court held that while officers remain free to examine the physical aspects of the phone---say, can it be used as a weapon, or is there a razor blade hidden in the case. But once that brief evaluation is complete, the digital evidence on the phone can endanger no one, thus it cannot be searched without a warrant (or consent).

The Court also held that officers may seize and secure a cell phone to prevent destruction of evidence while seeking a warrant and may take steps to prevent remote wiping or locking. The Court made clear, however, that the possibility of a phone locking or being remotely wiped, in other words a "now or never" situation, you may be able to rely on exigent circumstances to immediately search the phone. That situation is perceived by the Court to be rare.

EXCEPTION

The Court held that a warrantless search is reasonable only in circumstances where there is an exigent circumstance that can be articulated. ie., death or great bodily injury, destruction of property, flight of a suspect, etc.

A FEW TAKEAWAYS

The Court treats computer searches differently than physical searches. This fact has wide spread implications. The Court found that today's phones are "mini-computers." Taking the reasoning of this decision and applying it across the board to other electronic devices means that there are now two rules for searches incident to arrest: One for physical evidence, which has not changed, and a new one for digital evidence where officers need to get a search warrant or obtain consent.

The Court makes clear that they are not changing the rule for the collection or inspection of aggregated digital information and whether that collection constitutes a search. In California, we continue to be governed by Penal Code section 1524.1 and 1524.3.

The Court alludes to searches of the "Cloud." The Court here, draws no distinction from information stored on a phone/computer and that is stored in the Cloud. If that is true, you MUST obtain a search warrant (or consent) for any search of Cloud storage.

The court summed up the holding thusly:
"Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple---get a warrant."