Supreme Court: Police Officers Need a Warrant to Search an Arrestee’s Cell Phone
By Anton Ziajka – Edited by Sarah O’Loughlin
Riley v. California, 573 U.S. __ (2014)
Slip OpinionOn June 25, 2014, the Supreme Court decided that police officers “must generally secure a warrant before conducting . . . a search of the information on a cell phone” seized from an individual who has been arrested. Slip op., at 10. Writing for a unanimous Court, Chief Justice Roberts balanced, on the one hand, “the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at 9.
The Court found only minimal governmental interest, noting that, unlike physical objects on an arrestee, “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.” Id. at 10. The Court acknowledged governmental concerns that digital evidence may be lost through remote wiping or data encryption, but found these concerns insufficiently compelling. See id. at 12–15.
On the other side of the equation, the Court found that the information contained on a cell phone is both quantitatively greater and qualitatively more sensitive than physical records likely to be present on an individual’s person at the time of his arrest. Id. at 17–21. A search of such digital information “would typically expose to the government far more than the most exhaustive search of a house,” the Court concluded. Id. at 20. See the Washington Post and New York Times for further reporting on the decision.
The Court’s decision in Riley and its companion case, United States v. Wurie, has been celebrated by privacy advocates such as Marc Rotenberg and Alan Butler of EPIC. The Court ruled more broadly than even the opposing lawyers had expected, New Republic reports. For example, the Court could have — but did not — “split the baby” by distinguishing smart phones from less-powerful flip phones, writes Mason Clutter. The Court also rejected various “fallback options” proposed by the government that would have allowed officers more discretion to conduct cell phone searches. Id. at 22–25. Also notable is the Court’s unanimity in the opinion, which is especially surprising in light of recent disagreement amongst the Justices over the standards by which privacy should be reviewed, Adam Gershowitz writes.
Riley undoubtedly “will have an impact on the ability of law enforcement to combat crime.” Id. at 25. The convictions of defendants in both Riley and Wurie probably could not have been obtained without the warrantless cell phone searches, id. at 1–4, and now they likely will be overturned. Anthony Barkow and Eric Del Pozo further analyze the decision’s potential effects on law enforcement.
However, several factors could limit Riley’s impact. First, it may prove relatively easy for an officer to obtain a warrant to search an arrestee’s cell phone. Indeed, Jeffrey Fisher, counsel for the Riley defendant, stated at oral argument that the police probably could have obtained a warrant to search his client’s smart phone (Tr. 12:14–18). Moreover, the Court observed that officers can obtain search warrants from judges via email in under fifteen minutes. Riley, slip op. at 26. In addition, the Court expressly limited its holding to searches incident to arrest, noting that its decision “do[es] not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.” Id. at 18, n.1. Just Security further analyzes possible limiting factors.
Riley might also implicate national security matters. Rotenberg and Butler predict that the opinion will be quoted in challenges to the NSA bulk data collection programs. Indeed, plaintiff’s counsel in Klayman v. Obama — which challenges the constitutionality and statutory authorization of the NSA’s phone record collection under Section 215 of the PATRIOT Act — recently filed a Notice of New Case Authority attaching Riley on the grounds that it “concerns issues similar to” the issues in Klayman.
However, Riley’s immediate effect on NSA cases likely will be minor. As discussed above, the Court expressly avoided implicating data collection outside the limited context of post-arrest searches. Also, the Court cited Smith v. Maryland, which established the “third-party doctrine” that no warrant is required to obtain from a telephone company phone numbers dialed by its customers, id. at 24, and on which the government has relied to support the legality of the NSA collection programs. However, the Riley Court distinguished Smith on the grounds that the phone number collection in Smith “was not a ‘search’ at all under the Fourth Amendment,” and declined to pass any judgment on Smith’s merits. Id. At the very least, Riley might be a harbinger of the Court’s trend toward reevaluation of old doctrine in light of new technology.
On June 25, 2014, the Supreme Court decided that police officers “must generally secure a warrant before conducting . . . a search of the information on a cell phone” seized from an individual who has been arrested. Slip op., at 10. Writing for a unanimous Court, Chief Justice Roberts balanced, on the one hand, “the degree to which [the search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at 9.
The Court found only minimal governmental interest, noting that, unlike physical objects on an arrestee, “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.” Id. at 10. The Court acknowledged governmental concerns that digital evidence may be lost through remote wiping or data encryption, but found these concerns insufficiently compelling. See id. at 12–15.
On the other side of the equation, the Court found that the information contained on a cell phone is both quantitatively greater and qualitatively more sensitive than physical records likely to be present on an individual’s person at the time of his arrest. Id. at 17–21. A search of such digital information “would typically expose to the government far more than the most exhaustive search of a house,” the Court concluded. Id. at 20. See the Washington Post and New York Times for further reporting on the decision.
The Court’s decision in Riley and its companion case, United States v. Wurie, has been celebrated by privacy advocates such as Marc Rotenberg and Alan Butler of EPIC. The Court ruled more broadly than even the opposing lawyers had expected, New Republic reports. For example, the Court could have — but did not — “split the baby” by distinguishing smart phones from less-powerful flip phones, writes Mason Clutter. The Court also rejected various “fallback options” proposed by the government that would have allowed officers more discretion to conduct cell phone searches. Id. at 22–25. Also notable is the Court’s unanimity in the opinion, which is especially surprising in light of recent disagreement amongst the Justices over the standards by which privacy should be reviewed, Adam Gershowitz writes.
Riley undoubtedly “will have an impact on the ability of law enforcement to combat crime.” Id. at 25. The convictions of defendants in both Riley and Wurie probably could not have been obtained without the warrantless cell phone searches, id. at 1–4, and now they likely will be overturned. Anthony Barkow and Eric Del Pozo further analyze the decision’s potential effects on law enforcement.
However, several factors could limit Riley’s impact. First, it may prove relatively easy for an officer to obtain a warrant to search an arrestee’s cell phone. Indeed, Jeffrey Fisher, counsel for the Riley defendant, stated at oral argument that the police probably could have obtained a warrant to search his client’s smart phone (Tr. 12:14–18). Moreover, the Court observed that officers can obtain search warrants from judges via email in under fifteen minutes. Riley, slip op. at 26. In addition, the Court expressly limited its holding to searches incident to arrest, noting that its decision “do[es] not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.” Id. at 18, n.1. Just Security further analyzes possible limiting factors.
Riley might also implicate national security matters. Rotenberg and Butler predict that the opinion will be quoted in challenges to the NSA bulk data collection programs. Indeed, plaintiff’s counsel in Klayman v. Obama — which challenges the constitutionality and statutory authorization of the NSA’s phone record collection under Section 215 of the PATRIOT Act — recently filed a Notice of New Case Authority attaching Riley on the grounds that it “concerns issues similar to” the issues in Klayman.
However, Riley’s immediate effect on NSA cases likely will be minor. As discussed above, the Court expressly avoided implicating data collection outside the limited context of post-arrest searches. Also, the Court cited Smith v. Maryland, which established the “third-party doctrine” that no warrant is required to obtain from a telephone company phone numbers dialed by its customers, id. at 24, and on which the government has relied to support the legality of the NSA collection programs. However, the Riley Court distinguished Smith on the grounds that the phone number collection in Smith “was not a ‘search’ at all under the Fourth Amendment,” and declined to pass any judgment on Smith’s merits. Id. At the very least, Riley might be a harbinger of the Court’s trend toward reevaluation of old doctrine in light of new technology.