Riley v. California, [No. 13-132, June 25, 2014] and U.S. v. Wurie, [No. 13-212, June 25, 2014], 573 U.S. ___ (2014).
The U.S. Supreme Court recently addressed Fourth Amendment rights concerning police searches of cell phones. In a decision authored by Chief Justice Roberts, the Court determined that police may not search cell phone data of an individual who has been arrested without first obtaining a warrant. The opinion results from two separate criminal cases which were consolidated before the Court, with the Justices unanimous in the result of the case. Reiterating that the Fourth Amendment protects individuals’ property from unreasonable searches, the Court declined to extend recognized exceptions to warrantless searches incident to an arrest to include searches of cell phones. The Court also recognizes significant privacy concerns exist, including Fourth Amendment protections, with cell phone and cloud data.
Searches incident to an arrest are routinely permitted without a warrant when the search is to prevent harm to the arresting officers or is to secure evidence from destruction which is within the immediate control of the arrested person. Cell phone data, the Court now holds, fits neither circumstance. First, the Court rejects that a cell phone may pose a risk of immediate harm to the arresting officers. Under the risk of harm analysis, the Court leaves open the ability to search a cell phone if exigent circumstances support a warrantless search to prevent grave danger to the lives of the arresting officers or others when facts of the circumstances reasonably justify a search in an extreme emergency.
Secondly, the Court similarly rejects that a search of the cell phone is required without a warrant to prevent destruction of evidence. In reaching this conclusion, the Court rejected arguments that remote wiping and data encryption pose a risk of destruction of evidence. As to remote wiping, the Court refused to allow a warrantless search based on an unsubstantiated act of a third-party to remotely erase the phone’s data. Similarly, the Court was unpersuaded that the automatic encryption of data justifies a warrantless search. Along this line, the Court leaves open allowing law enforcement to take reasonable steps to disable or prevent remote wiping of the phone without accessing the internal data.
Significantly, the Court spends considerable time on the storage of personal information on cell phones and in the cloud, indicating the Court may be prepared to recognize privacy rights of individuals’ information stored on devices and in the cloud. In its examination of cell phone and cloud data, the Court states that “modern cell phones, as a category, implicate privacy concerns” far beyond searching physical materials on the arrestee’s person. The Court points out that the search of a cell phone carries with it the ability to access the owner’s information stored across the internet. This case leaves open whether an additional or specific warrant is needed to search data stored outside the physical phone.
The Court points out that a search of a cell phone and related cloud-based data would reveal far more than a search of one’s person or home. In its conclusion, the Court emphasizes that “the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. 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.”