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By: Wayne S. Melnick
On Tuesday, April 29, 2014, the United States Supreme Court heard argument focused on a question that is being closely watched by many and has the potential to affect a great portion of the United States population: do police officers have the right to make a warrantless search the contents of a person’s cell phone subsequent to that person’s lawful arrest? The implications of the court’s ruling on this issue are great and will likely be the foundation of computer-based search and seizure law for many upcoming years.
In the cases before the Court, United States v. Wurie (Case Number 13-212) and Riley v. California (Case Number 13-132), the Court is essentially faced with the same question: was it proper for the authorities at issue to search the contents of the arrestee’s cell phone after that person had been properly placed under arrest? The answer to this question is largely going to depend on the factual basis that is used to justify the search.
Historically, the Supreme Court has developed various exceptions to the constitutional right providing for prohibition against warrantless searches. Chief among these has been to prevent physical danger to the officers or to prevent the destruction of evidence. The main problem with this justification is that neither is present regarding digital evidence where there is no danger of the immediate destruction of the evidence. Obviously, an officer is not going to be hurt by the data (as (s)he might be with a gun or a knife), and if the data has properly been taken into custody and kept separate from the perpetrator, there is no real danger of destruction of the evidence absent the government’s stated concern of “remote data wiping.” Pretermitting that, the officer certainly can otherwise move quickly to obtain a lawful warrant for the search.
A cell phone is not really just a “phone” anymore. Today’s smartphones are actually computers with the capability to make calls. To simply allow the government to do a complete search of person’s cell phone (or restated their “pocket computer”) would be a dramatic and, in this author’s opinion, uncalled-for expansion of the government’s power and a threat to personal privacy.
The bottom line is that I expect the Court will issue new rules related to digital data that are different from the bright-line rules associated with physical evidence and at the same time not allow for a blanket “free-pass” for the government to make these warrantless searches every time a cell phone is taken into custody. One possibility is that the Court holds that the police can seize the phone but cannot search it incident to arrest absent exigent circumstances. Alternatively, the Court could hold that police can seize the phone and can search it in at least some circumstances, such as when there is reason to believe that there is evidence of the crime for which the person was arrested in the phone. If the latter is chosen, it opens up even larger cans of worms related to what the police can do with the digital evidence found on the phone that is unrelated to the crime for which the perpetrator was arrested but could be incriminating of other, up-to-that-point unknown crimes.
What those rules will be will not be known when the court rules – expected to be in June.