Call Me Back With a Warrant for My Smart Phone.

The recent decision in Riley v. California (2014), 573 U.S. ___ was a decision that really surprised criminal defense lawyers.  Therein, the United States Supreme Court ultimately held that a search warrant is necessary to inspect cellular and smart phones.  The case was actually two separate cases.  In Riley, defendant was arrested for expired tags and his smart phone recovered during the inventory search.  A warrantless search of the phone revealed a photograph of the defendant with a car that was suspected in a shooting.  Ultimately, defendant was charged with attempted murder.  In Wurie, defendant was arrested during a drug sale.  The warrantless inspection of the phone showed various calls from a telephone labeled “my house.”  The officers then traced the number to a residence and searched the residence to discovery crack cocaine, marijuana, and weapons.

The opinion is a decent review of the search incident to arrest exception to the Fourth Amendment warrant requirement.  Interesting, the Court noted that calling it a search incident to arrest “exception” is an understatement; “[i]ndeed, the label “exception” is something of a misnomer in this context, as warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.”  Id., at p. 6.

The opinion then reviews what the Court describes as the trilogy of search incident to arrest cases, namely Chimel v. California, United States v. Robinson; and Arizona v. Gant in 2009.  The Court explained that Gant recognized that the exception is based on officer safety and evidence preservation.  Obviously a phone presents no safety concern, so the evidence preservation issue is the more relevant consideration.  In fact, the Court found that “[d]igital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer[.]”  Riley, at p. 10. The Court too noted that the information on the cell phone could not be readily destroyed either.  Id. p. 12.

The Court then began the analysis with “[a]bsent more percise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon and individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”  Riley, at p. 8, citing Wyoming v. Houghton (1999), 526 U.S. 295. The Court then engaged in a rather extensive discussion about the technology of smart phones.  The Court recognized that cell phones “place vast quantities of personal information literally in the hands of individuals.”  Id. The Court even makes reference to using a cell phone to search files stored remotely.

Although the Court would ultimately hold that a warrant is required to access the information – it would hint to law enforcement that it might argue the exigent circumstances exception to the warrant requirement in certain cases.  Almost out of an episode of the TV series 24, the Court hypothesized a situation where a suspect is texting an accomplice to detonate a bomb.  Nonetheless the Court clearly answers the question of what police must do before searching a cell phone – “get a warrant.”  Id. 28.