By Maya Kushner, Esq.
For many people, their cell phone is the most important item they own. A cell phone, especially if it’s a smartphone, contains a myriad of personal data, such as all of the contact information for our friends and family, photos and videos we have taken or that others have shared with us, and countless conversations via text messages and various messenger applications. You can learn anything about the owner of a phone after a simple cell phone search, from her superficial interests by looking at her game apps, to something deeply personal, such as weight, allergies, diseases, and other information entered into apps like FitBit and MyFitnessPal. You can glean someone’s daily routine through the list of GPS coordinates a phone creates as it travels around with its owner. Finally, a smartphone is often the “portal” to other repositories of personal information, as phones are frequently synced with email accounts, banking accounts, personal computers, etc.
With all that a cell phone contains, it is no surprise that we want to control who has access to our phones, when, and how. So when can police officers look through your phone?
When police officers look through your belongings, including through the data on your cell phone, it is considered a “search” under the 4th Amendment to the US Constitution. Generally, before police officers can perform a search, they first need to obtain a search warrant. However, over the years, the US Supreme Court has created a number of exceptions to the warrant requirement, including a search that is performed right after the arrest of an individual.
This scenario recently played out as the US Supreme Court decided Riley v. California in June of 2014. In this case, Mr. Riley was pulled over for having expired registration. Police later found unregistered firearms in his car, for which he was subsequently arrested. Immediately after the arrest, police officers conducted a pat-down of Mr. Riley and seized the objects they found, including his cell phone. Without obtaining a search warrant, the officers looked through the phone and found incriminating evidence suggesting that Mr. Riley was a member of a gang. This evidence was later used at trial to help prosecutors secure a conviction.
When conducting the search of Mr. Riley’s cell phone, the police relied on a well-established exception to the warrant requirement: the police may search items found on the individual right after he has been arrested. This exception was created with two purposes in mind: (1) to ensure officer safety, and (2) to prevent destruction of evidence. However, after hearing Mr. Riley’s case, the US Supreme Court unanimously decided that the search of data on a cell phone cannot be justified by either of those two interests and concluded that the search of cell phone data requires the police to obtain a search warrant first.
Ensuring officer safety is important, as arrests tend to be tense, high-risk situations. With a timely pat-down of the arrestee, officers can discover and confiscate weapons, and prevent harm to themselves and innocent bystanders. But data on a cell phone is not a threat, says the Supreme Court. Thus, “law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon — say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.”
More closely, the Court considered the question of preventing the destruction of evidence. A cell phone may undoubtedly contain evidence of a crime, from something as direct as a video of the crime being committed, to something less direct, such as geo-location data proving that the suspect was at the scene of the crime when it occurred. The police have an interest in preserving and obtaining this data. Once the officers have secured the phone, the main risk to preserving the data is remote wiping of the phone. This may be done by a third party, or by the arrestee himself, in anticipation of his arrest. However, the Court said “as to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network.” To prevent remote wiping, law enforcement can turn the cell phone off, or remove its battery. They can also store the device in a Faraday Bag and take other measures to prevent an outside signal from reaching the cell phone.