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The U.S. Supreme Court summed up their thoughts on searches of cell phones by police in one short comment. “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple,” Chief Justice John Roberts said in the Court’s opinion covering warrantless searches of cell phones, “get a warrant.”
The unanimous decision was in response to two cases before the court, one, Riley v. California, was in regards to a smartphone seized during a gang related arrest. The other, United States v. Wurie, was in regards to a flip-phone seized in a drug-related arrest. In both cases, information on the phones led police to evidence that in turn led to arrests on additional charges.
In both cases, law enforcement officers said that they examined the phones because the defendants were in possession of them at the time of their arrests. Normally the courts have held that police may search individuals when they’re arrested to protect police from weapons and to preserve evidence. However, the protection of the law enforcement personnel is the primary reason for allowing any warrantless search. To examine anything found requires a warrant.
In deciding this case, the Court, which has often been accused of being out of touch with current technology, showed no such limitations in this case. It was clear from the opinion that the Justices understood the difference between mobile phones and other things a person, criminal or not, might carry.
“Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” Roberts said in the Court’s opinion. “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”
Roberts went on to describe the vast storage capacities of today’s smartphones, and that before these devices appeared one would be limited by the physical realities of storage and transportation if they wanted to carry such large quantities of information around.
“Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant,” Roberts pointed out.
Roberts also noted that one thing that has changed as a result of the digital revolution is the element of pervasiveness. He pointed out some estimates that indicate 90 percent of American adults have a cell phone. He also noted that those phones now carry a cache of sensitive and personal information including details of where they’ve been, private medical details and a range of other information.
Supreme Court Affirms Cell Phone Searches Require Warrants
What was perhaps most revealing about the Court’s thinking was a description of how the apps that a person could have on a phone can disclose about them. He mentioned apps for everything from political activity, addiction treatment, pregnancy tracking and even for improving your romantic life. Roberts also noted the added complexity of cloud-based storage, and how that could be used and followed by the government.
Roberts focused specific criticism at a government proposal that law enforcement agencies develop protocols to address the concerns of cloud computing. “Probably a good idea,” he wrote, but then added searingly, “but the Founders did not fight a revolution to gain the right to government agency protocols.”
Roberts wrote that the privacy interests that would arise from warrantless searches of evidence in the cloud that are not in the proximity of an arrestee would dwarf the concerns that have arisen in previous cases.
Following the decision, a number of law enforcement organizations have criticized it claiming that requiring a warrant to search the contents of a cell phone would hamper police investigations and endanger police.
However, Justice Roberts had already formed an answer for that criticism. Police, he said, had already shown that they could email a request for a warrant to a judge, have the judge sign it on his iPad and return it to the police in 15 minutes.
A number of industry and privacy groups hailed the Court’s decision. “This is a crucial ruling that assures individuals their photos, letters, travel records and other documents revealing their lives have the same protection on their mobile phone as information stored in a desk at home,” said Ed Black, president and CEO of the Computer and Communications Industry Association.
“As technology advances and people rely more on their phones and less on paper records it is critical that 4th amendment protections against search and seizure keep up with that. We hope the next step is for Congress to pass pending legislation to ensure this warrant protection for other online communications.”
The Court acknowledged that their decision will cause problems. “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime,” Roberts wrote in the Court’s decision. “Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.”
What’s important in this decision is that the court carefully weighed the vast potential privacy impact if cell phones are fair game for warrantless search. The court also made note of a variety of related information that should be protected, notably information on the position of a phone, and the other data, specifically forms of metadata. Is it safe to assume that this decision could be a precursor to decisions on other methods of capturing data from phones, perhaps by the National Security Agency?