Searching Cellphones

Robert C. Phillips
Deputy District Attorney, Retired
June, 2014

            Barely three years ago, the California Supreme Court held in People v. Diaz (2011) 51 Cal.4th 84, that a cellphone recovered from the person of an arrestee is subject to search just like with any other container.  No search warrant is needed. 

            Well, Diaz is history.  Erase it from your mind.  The United States Supreme Court intervened and, resolving conflicting opinions on this issue from throughout the country,  ruled to the contrary in two combined cases under the single title of Riley v. California (June 25, 2014) 2014 U.S. LEXIS 4497.

               California’s contribution stemmed from an incident occurring in San Diego itself.  David Riley was arrested when two concealed firearms were recovered from his car during an inventory search.  When Riley was searched incident to arrest, a “smart phone” was seized from his person.  This cellphone was itself subsequently searched, the contents of which helped connect Riley to an earlier drive-by shooting as well as provide the basis for a gang allegation, per P.C. § 186.22, aggravating his ultimate sentence. Riley appealed. 

            From the east coast, Brima Wurie, was arrested by Boston police after having been observed by officers selling drugs from his car.  A “flip phone” was seized from Wurie’s person and searched.  Its contents helped lead officers to Wurie’s apartment which, pursuant to a search warrant, resulted in the recovery of enough dope to get him indicted in federal court.  The First Circuit Court of Appeal reversed his conviction and the Government appealed.

            In both cases, the contents of the respective defendants’ cellphones were instrumental in their prosecutions.  In neither case was a search warrant obtained authorizing the search of their phones.  A unanimous Supreme Court reversed Riley’s conviction and upheld the circuit court’s reversal of Wurie’s conviction, ruling in both cases that the warrantless searches of the respective defendants’ cellphones were illegal. 

“(T)he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’”  “Reasonableness” requires that in order for a search to be upheld, a search warrant is generally required.  No one contested the officers’ right to seize the defendants’ cellphones incident to their lawful arrest.  The issue here was the reasonableness of a warrantless search of an arrested suspect’s cellphone once seized. 

Generally speaking, when a suspect is subjected to a custodial arrest, his person and any containers found on his person are subject to an immediate warrantless search.  The justifications for finding an exception to the warrant requirement in the “incident to arrest” situation are to remove any weapons that may be used to resist arrest or effect an escape, and to seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.  To accomplish these goals, the arresting officer may search the arrestee and the area immediately surrounding him when arrested.  (Chimel v. California (1969) 395 U. S. 752.)  This includes any closed containers (United States v. Robinson (1973) 414 U. S. 218; a cigarette pack.), at least when the container constituted “personal property . . . immediately associated with the person of the arrestee.” (United States v. Chadwick (1977) 433 U. S. 1.)  

California and a number of other jurisdictions included in the list of possible containers the arrestee’s cellphone, declining to differentiate a cellphone from any other type of container.  Under the Diaz theory, both the cellphones taken off of Riley’s and Wurie’s person, respectively, were subject to a warrantless search.  By invalidating California’s Diaz rule, the Supreme Court here recognized that cellphones are like no other type of container that an officer is likely to find on an arrestee’s person. 

In determining the need to conduct a warrantless search of containers recovered from an arrestee’s person, a balancing test is used.  Specifically, a court must balance “on the one hand, the degree to which it (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.” A cigarette pack, for instance, as found in Robinson’s pocket (U.S. v. Robinson, supra.) bears little resemblance to the degree of privacy one reasonably expects in the contents of his cellphone.

Cellphones today, whether a “smart phone” as possessed by Riley, or the older, simpler “flip phone” as possessed by Wurie, are really nothing less than mini-computers that happen to also have the capacity to be used as a telephone. They typically contain “an immense storage capacity” with any number of personal photographs, text messages, Internet browsing history, e-mails, a calendar, a “thousand-entry phone book,” and other types of personal information.

  Balance this with the fact that the historical justifications for searching containers found on the person (i.e., to discover potential weapons and prevent the loss of evidence) simply don’t apply to cellphones, at least after they have been removed from the arrestee’s control, and it is obvious that there is no legal justification for searching them without first obtaining judicial approval in the form of a search warrant. 

The Court recognized that while rarely a problem, there are methods available for an arrestee or a third party to destroy the potentially relevant criminal information in one’s cellphone (e.g., remote wiping and data encryption) even after it is taken into custody by police.  However, there are also procedures available to prevent such occurrences, such as disconnecting the phone from the network, turning it off, removing its battery, and/or placing it into an enclosure that isolates it from radio waves; i.e., an aluminum foil sandwich-type bag known as a “Faraday bag."  And if not, when it can be shown that such a destruction or encryption capability is likely to be used, “exigent circumstances” may allow for an immediate search without the necessity of a warrant.  Although traditional exigent circumstance rules continue to apply to cellphones, no such exigent circumstances were shown in either of these two cases. 

In the end, the Supreme Court summarized their ruling in one sentence:  “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.”