Tuesday, September 30, 2014

Privacy in a Tech World: Cellphone Data Requires a Warrant

After Apple Inc. announced the release of the iPhone 6 models for September 19th, the tech community roared in excitement about all of the new capabilities, and what a new smart phone could do for them.  With more than 1.2 million apps available, it’s pretty much a guarantee that “there’s an app for that.”  Increasingly, many people use apps for issues they may wish to keep private, such as sending confidential emails, or more controversially, for the “sexting” phenomenon.

In 1979, it was established that law enforcement agencies can retrieve phone records without warrants.  A landmark Supreme Court case, Smith v. Maryland, held that the Fourth Amendment protection against unreasonable search and seizure does not extend to phone numbers.  Further, in 1986 Congress passed the Electronic Communications Privacy Act, which required cell service providers to allow access to cellular data, contingent on a court order or a subpoena.  Over the past three decades, there have been a few notable challenges to law enforcement obtaining cellular records, most concluding that a warrant is typically necessary, but all of which have pertained only to records of the phone’s usage and not necessarily what we may want to keep private on the phone itself.   Then came Riley v. California.

Riley announced the decision for two cases with similar facts.  First, for David Riley, who was stopped by police for an expired tag, where it was discovered his license had also expired.  Police searched his car and found two concealed, loaded guns, and seized Riley’s phone.  Riley was subsequently charged with a gang-related shooting using evidence obtained from his phone, which Riley unsuccessfully moved to suppress, and was later convicted.  Second, for Brima Wurie, who was witnessed making a drug deal from his car by law enforcement.  Officers arrested Wurie, seized his phone, and used information from the phone to find Wurie’s apartment.  Police used the information to obtain a warrant to search the apartment, which Wurie attempted to suppress on the basis that the search of his phone was unconstitutional.  The motion was denied, and Wurie was later convicted as well.

Chief Justice Roberts wrote the opinion for Riley, beginning with the exception to the Fourth Amendment’s requirement of a warrant for a search of someone who has been arrested. For someone “incident to a lawful arrest”, a search is allowed for the purpose of removing any weapons that the arrestee could use to avoid or resist arrest, injure a law enforcement agent, or escape capture.

The Court recognized modern cellphones as “such a pervasive and insistent party of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”  As such, they have taken on a place of increased importance that could not have been foreseen at the time the Fourth Amendment exception for warrantless searches was created.  Further, the Court noted that cellphones “place vast quantities of personal information literally in the hands of individuals.”  Calling them cellphones may be a misnomer, when they “are in fact minicomputers that also happen to have the capacity to be used as a telephone.”

Consequently, the Fourth Amendment exception for a search incident to a lawful arrest does not apply to cellphones.  Frankly put, the Court said, “[o]ur 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.”  However, the court also recognized that a cellphone could be searched without a warrant when “justified by exigent circumstances5 which is seemingly evaluated on a case-by-case basis.

Riley thereby gives us a limit on the intrusiveness of cellphone searches. While that limit is not as bright-line as the Court has attempted to make search and seizure rules in the past, given the exigent circumstances exception, most people can rest assured that sensitive information on your cell phone is now reasonably safeguarded. The takeaway is that cellphones must be treated differently from other personal property in any context where a search is conducted. The prudent attorney should always be skeptical of how information was obtained from a cellphone search. The cellphone-user can use their device as freely as they wish, knowing that those embarrassing texts won’t be in the purview of law enforcement during your average traffic stop.

Kyle Kemper
Staffer, Criminal Law Practitioner

5 See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 298-299 (1967) (“The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”).

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