U.S. Supreme Court Considers Constitutionality of Searches of Arrestees' Cell Phones

May 12, 2014
By Parker Scheer LLP on May 12, 2014 2:28 PM |

On April 29, 2014, the United States Supreme Court heard oral arguments in two criminal cases that have asked the Court to determine whether searching a person's cell phone at the time he is arrested is a proper "search incident to arrest," or an unreasonable search that infringes on the arrestee's rights under the Fourth Amendment to the Federal Constitution. One of those cases - U.S. v. Wurie - is on appeal from the First Circuit in Massachusetts.

In Wurie, the police arrested the defendant in connection with a drug deal. Among other items that were on the defendant at the time of the arrest, the police seize two cell phones from him. After they were seized, the police observed that one of the cell phones repeatedly received phone calls from a number identified as "my house" on the external caller ID screen. A few minutes later, one police officer opened the cell phone and looked at the defendant's call log. In doing so, the officer observed a photograph of a woman holding a baby, which was set as the phone's wallpaper. The officer then navigated the cell phone to determine what phone number was associated with the calls from "my house."

The officer used that telephone number information to find the address associated with the number, and learned that it was connected to a house in South Boston. The police went to the South Boston address, and from outside, they were able to observe a woman inside the apartment who looked like the woman in the photo on the cell phone wallpaper. After they entered the apartment, the police also found a sleeping child who appeared to be the baby in that photo. The police obtained a search warrant for the apartment, and seized 215 grams of crack cocaine, a firearm, ammunition, four bags of marijuana, drug paraphernalia, and $250 in cash. The defendant was charged with and convicted of possession of cocaine with intent to distribute; distribution of cocaine; and being a felon in possession of a firearm and ammunition.

On appeal, the First Circuit vacated the defendant's conviction, holding that the evidence seized as a result of the search of the defendant's cell phone should not have been offered into evidence, because the police obtained that evidence in violation of the defendant's rights. As the First Circuit explained, one exception to warrantless searches is the "search-incident-to-arrest" exception. Under that exception, when a person is arrested, the police may search the arrestee and the area within his immediate control, for the purpose of protecting officer safety and ensuring the preservation of evidence.

The First Circuit observed that many courts, including the Massachusetts Supreme Judicial Court, have held that the search of a cell phone seized from the arrestee falls within the "search-incident-to-arrest" exception, relying on the need to protect the safety of the arresting officers, the need to preserve evidence, or both. A smaller number of courts, however, have rejected cell phone searches, on two basic theories. First, once it is in the exclusive control of the police, the cell phone can no longer be used as a weapon or to destroy evidence, and therefore it cannot be searched absent exigent circumstances. Alternatively, courts have ruled that people have a high expectation of privacy in the data and other contents of their cell phones, and thus any search of a cell phone must be conducted pursuant to a warrant.

Agreeing with the minority of courts, the First Circuit noted that the data people carry on their cell phones today ranges from contact information, substantive text messages, and personal photographs, to financial documents, work-related email messages, and web browsing history - information that would generally be kept in a person's house, where police could generally not search without a warrant. The court found no merit to the government's argument that the search of the defendant's cell phone was required in order to prevent the possible destruction of evidence contained on that phone, noting that there were other ways to ensure preservation of the cell phone data that were less intrusive than impinging on the defendant's privacy rights.

In sum, the First Circuit held, "[W]e believe that warrantless cell phone data searches are categorically unlawful under the search-incident-to-arrest exception, given the government's failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence. ... Instead, warrantless cell phone data searches strike us as a convenient way for the police to obtain information related to a defendant's crime of arrest - or other as yet undiscovered crimes - without having to secure a warrant. ... Allowing police to search that data without a warrant any time they conduct a lawful arrest would, in our view, create 'a serious and recurring threat to the privacy of countless individuals.'"

According to an article from the New York Times, the Supreme Court justices appeared divided on the issue during oral argument last month. The justices weighed the fact that technology has made it possible for people to essentially "carry their lives on cell phones," against the possibility that cell phones may be used as weapons, to erase evidence of a crime, or even to detonate a bomb. They also considered whether a fact-specific rule could be crafted, such that warrantless searches of cell phones would be permissible only in situations where serious crimes were involved - a possibility that the First Circuit considered, but rejected as "inherently subjective and highly fact specific," and "extremely difficult for officers in the field to apply."

The Supreme Court's anticipated decision on the issue will have an enormous effect on criminal defendants' privacy rights - either by recognizing the need to protect their privacy interests in the data contained in their cell phones if warrantless cell phone searches are struck down, or by permitting officers to rummage through a person's cell phone data any time an arrest is made if such searches are upheld.