Illegally Obtained Evidence

A Warrant Is Generally Required To Search Digital Information on a Cell Phone Seized Incident to an Arrest

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In Riley v. California (2014) 573 U.S. ___, 134 S.Ct. 2473, 189 L.Ed.2d 430, the common issue presented by two consolidated cases was whether the police may, incident to an arrest and without a warrant, search digital information on a cell phone seized from an arrestee.

In the first case, defendant was stopped for driving with expired registration tags and found to have a suspended license. His car was impounded. A subsequent inventory search turned up two handguns, and defendant was arrested on a weapons charge. Incident to that arrest, police seized a cell phone from defendant’s pants pocket. Based on evidence found on the phone, defendant was charged with various offenses. His motion to suppress the evidence obtained from his cell phone was denied and he was convicted on all counts. The California Court of Appeal affirmed based on People v. Diaz (2011) 51 C.4th 84, 119 C.R.3d 105, 244 P.3d 510, 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, §196, which held that the Fourth Amendment allows search of a cell phone incident to an arrest, so long as the phone is immediately associated with the suspect’s person.

In the second case, defendant was arrested after a police officer saw him making an apparent drug sale. At the police station, officers seized two cell phones from his person. Using information obtained from one of the phones, officers went to defendant’s residence, secured it while they obtained a search warrant, and, on executing the warrant, found guns, drugs, and cash. Defendant was charged with drug and weapons offenses. He moved to suppress the evidence obtained in the search of the residence as the fruit of an unconstitutional search of the cell phone. The federal district court denied his motion. The Court of Appeals reversed the denial of his motion to suppress and the convictions, holding that cell phones are distinct from other items that may be searched incident to an arrest without a warrant because they contain a large amount of personal data and present a negligible threat to law enforcement interests.

Held, a warrant is generally required to search the digital information on a cell phone seized incident to an arrest. Because the search of a cell phone represents a significant incursion into individual privacy interests, and the delay required to secure a warrant presents little threat to officer safety or risk of destruction of evidence (and the risk, where it exists, can be ameliorated), a warrant is required to search a cell phone that has been seized incident to an arrest, unless another exception to the warrant requirement applies, such as the exception for exigent circumstances.

(a) Related precedents. Generally, a search may not be conducted without a warrant. However, an exception exists for a search incident to an arrest, so long as the search is reasonable under the Fourth Amendment. The rules governing such searches are set forth in three related precedents:

(1) Chimel v. California (1969) 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, 4 Cal. Crim Law (4th), Illegally Obtained Evidence, §190, held that an extensive search of the entire home, including the attic and the garage, of a suspect arrested at home did not fall within the exception for a search incident to an arrest because the search was not needed to protect officer safety or to preserve evidence. (134 S.Ct. 2483, 189 L.Ed.2d 439.)

(2) In United States v. Robinson (1973) 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427, 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, §191, officers, on arresting a suspect for a traffic violation, conducted a patdown search, found a crumpled cigarette pack in his coat pocket, looked inside, and found heroin capsules. This search was justified. While there was no concern about loss of evidence and no specific concern that the suspect might be armed, “[t]he authority to search the person incident to a lawful custodial arrest &elip; does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Where there is a lawful custodial arrest based on probable cause, a search incident to that arrest is lawful. No line was drawn between the search of the suspect’s person and the cigarette pack: having found the pack, the officer was entitled to inspect it. A later case clarified that the exception is limited to personal property “immediately associated with the person of the arrestee.” (134 S.Ct. 2483, 2484, 189 L.Ed.2d 440, 441, citing United States v. Chadwick (1977) 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538, 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, §283.)

(3) Arizona v. Gant (2009) 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485, 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, §193, analyzed searches of an arrestee’s vehicle. Based on Chimel, officers were authorized to search the vehicle only when the suspect was “unsecured and within reaching distance of the passenger compartment at the time of the search.” However, due to circumstances unique to vehicle searches, a search of the passenger compartment was also authorized when it was “reasonable to believe that evidence of the crime of arrest might be found in the vehicle.” (134 S.Ct. 2484, 189 L.Ed.2d 441.)

(b) Robinson is not controlling. Determining whether the warrantless cell phone searches considered here are valid requires balancing the degree to which the search intrudes on privacy rights against the degree to which it promotes legitimate government interests. The categorical rule of Robinson is based on the conclusion that the risks of (1) harm to officers, and (2) the destruction of evidence are present in all custodial arrests. There are no comparable risks related to digital data. Moreover, while Robinson regarded privacy interests as significantly diminished by the fact of arrest, privacy interests are increased where cell phones are concerned because cell phones may contain vast amounts of personal information. Thus, a search of the digital information on a cell phone bears “little resemblance to the type of brief physical search considered in Robinson.” (134 S.Ct. 2484, 2485, 189 L.Ed.2d 441, 442.)

(c) Promotion of legitimate government interests. Determining whether the search incident to arrest doctrine applies to a “particular category of effects” such a cell phones requires an examination of whether that application would ‘untether the rule from the justifications underlying the Chimel exception,’ i.e., protecting officer safety and preventing the destruction of evidence. (134 S.Ct. 2485, 189 L.Ed.2d 442, quoting Gant.)

(1) Protecting officer safety. While the police may search a cell phone to ensure that it will not be used as a weapon, the digital data presents no such risk. Whether search of the data might ensure against indirect risks, e.g., a warning that confederates of the arrestee are approaching the scene, is best addressed “through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.” (134 S.Ct. 2485, 2486, 189 L.Ed.2d 442, 443.)

(2) Preventing destruction of evidence. Once officers had secured the suspects’ cell phones, which they were entitled to do, there was no longer a risk that the suspects themselves would be able to delete incriminating data from the phones. However, the phones were arguably vulnerable to two risks unique to digital data--remote wiping and data encryption.

(i) Remote wiping. Remote wiping can occur when a phone connected to a wireless network receives a remote signal that erases stored data. A third party can send a remote signal or a phone can be preprogrammed to delete data on entering or leaving a given geographical area. The government’s primary concern here is based not on the actions of the suspect, but on third parties not present at the scene of the arrest. (134 S.Ct. 2486, 189 L.Ed.2d 443, 444.)

(ii) Data encryption. Data encryption is an added security feature on some cell phones. When the phone locks, the data becomes protected by sophisticated encryption, rendering the phone all but “unbreakable” unless police know the password. Here, the government’s focus is on the ordinary operation of the phone’s security features, apart from any attempt of a suspect to conceal or destroy evidence on arrest. Officers are unlikely to come upon a phone with this feature in an unlocked state because the phone usually locks at the touch of a button or after a short period of inactivity. (134 S.Ct. 2486, 189 L.Ed.2d 443.)

(iii) Common considerations. There is little evidence that either of these risks is prevalent or that the ability to conduct a warrantless search would make much difference. Officers at the scene of an arrest are busy effecting the arrest, securing the scene, and tending to other pressing matters. Remote wiping or data encryption might occur before officers have the opportunity to conduct a warrantless search, which might take place at the station house hours after the arrest. If faced with a known immediate threat of wiping or locking of digital data, officers may be able to rely on exigent circumstances to search the phone. (134 S.Ct. 2486, 189 L.Ed.2d 444.)

(iv) Securing the scene. Officers can prevent remote wiping by disconnecting a phone from the network. They can do so by turning the phone off or removing the battery. Where there is a threat of encryption, they can place the phone in “Faraday bag” that isolates the phone from radio waves. If officers seize a phone in an unlocked state, they may be able to disable the automatic-lock feature to prevent it from locking and encrypting data. These preventative measures can be analyzed under Illinois v. McArthur (2001) 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838, 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, §264, which allows officers to take reasonable steps to secure a scene while awaiting a warant. (134 S.Ct. 2487, 189 L.Ed.2d 444.)

(d) Suspect’s privacy interest. While the patdown of a suspect constitutes only a minor additional intrusion compared to the substantial government intrusion of taking a suspect into custody, the suspect’s diminished privacy interests does not mean that the Fourth Amendment is inapplicable. “[W]hen ‘privacy-related concerns are weighty enough’ a ‘search may require a warrant, notwithstanding the diminshed expectations of privacy of the arrestee.’” (134 S.Ct. 2488,189 L.Ed.2d 445, quoting Maryland v. King (2013) 569 U.S. ___, 133 S.Ct. 1958, 186 L.Ed.2d 1, 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, Supp., §407.) Modern cell phones implicate privacy concerns not implicated by the search of a cigarette pack, a wallet, or a purse. (134 S.Ct. 2488, 189 L.Ed.2d 446.)

(1) Quantitative differences. The immense storage capacity of cell phones, which can only be expected to increase, has several interrelated implications for privacy. (a) The cell phone collects a diverse array of information in once place, revealing much more in combination than any isolated record. (b) A cell phone has the capacity to store a vast amount of a single type of information. “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.” (c) The data in a phone can date back to the date of purchase of the phone, or earlier. (d) “Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day.” Now, many of the more than 90% of American adults who own a cell phone carry a digital record of nearly every aspect of their lives on their person. (134 S.Ct. 2489, 2490, 189 L.Ed.2d 446, 447.)

(2) Qualitative differences. Some types of data are also qualitatively different. (a) A browsing history on an Internet-enabled cell phone could reveal a person’s private interests and concerns. (b) Historic location information could enable reconstruction of a person’s movements down to the minute. (c) There are over a million apps available in each of the two major app stores, and an average cell phone user has 33 apps, “which together can form a revealing montage of the user’s life.” (134 S.Ct. 2490, 189 L.Ed.2d 447, 448.)

(3) Home and cell phone search compared. “In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is ‘a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.’ ... If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form--unless the phone is” there. (134 S.Ct. 2490, 2491, 189 L.Ed.2d 448.)

(4) Remote storage. Information found on a cell phone may be stored remotely, rather than on the device itself. The United States concedes that information stored remotely is not subject to a search as an incident to arrest, but officers searching a cell phone would not typically know whether the information they are viewing was stored locally or remotely. The government’s proposed solutions to this problem are unclear. “The possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee is yet another reason that the privacy interests here dwarf those in Robinson.” (134 S.Ct. 2491, 189 L.Ed.2d 448, 449.)

(e) Fallback options. The following fallback options for permitting warrantless cell phone search under certain circumstances are flawed and contravene a preference for presenting law enforcement with clear guidance through categorical rules:

(1) Importation of Gant standard. Importing the Gant standard, which applies to vehicle searches, would allow the search of a cell phone whenever it contains evidence of the crimes of arrest. But Gant relied on circumstances unique to vehicle searches and not present in cell phone searches: (a) a reduced expectation of privacy, and (b) heightened law enforcement needs. Moreover, the protections provided in Gant against searches for evidence of past crimes or broad searches resulting from minor crimes such as traffic violations would be difficult to provide in the context of a cell phone search. (134 S.Ct. 2492, 189 L.Ed.2d 449.)

(2) Restricting areas of phone subject to search. A rule restricting the scope of a cell phone search to areas of the phone where the officer reasonably believes information relevant to a crime may be found is unworkable. Any proposed category might bring in a great deal of information, and officers would not always know in advance where relevant information might be located. (134 S.Ct. 2492, 189 L.Ed.2d 450.)

(3) Search of call log. The government argues that by analogy to Smith v. Maryland (1979) 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220, 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, §243, that an officer should always be able to search a cell phone’s call log. However, Smith v. Maryland applied to pen registers, and the court concluded that the use of a pen register was not a “search” under the Fourth Amendment. Moreover, call logs typically contain additional identifying information, and not just telephone numbers. (134 S.Ct. 2492, 189 L.Ed.2d 450.)

(4) Search where there is pre-digital analog. A rule allowing the search of information on a cell phone that has a predigital analog would lead to a “significant diminution of privacy.” For example, while a person might carry a couple of photographs in a wallet, a cell phone might contains thousands of photos in a photo gallery. Such a rule would allow a search of a range of items contained in a phone, such as video tapes, photo albums, and an address book, that a person would be unlikely to be carrying in physical form. Moreover, it is unclear how officers before the fact and courts after the fact would determine what digital files are comparable to physical records, e.g., are e-mails equivalent to letters? (134 S.Ct. 2493, 189 L.Ed.2d 450, 451.)

(f) Warrant requirement. “Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.” Recent technological advances have made the process of securing a warrant more efficient; in one jurisdiction, a warrant could be secured remotely within 15 minutes by use of e-mail and an iPad. (134 S.Ct. 2493,189 L.Ed.2d 451, citing Missouri v. McNeely (2013) 569 U.S. ____, 133 S.Ct. 1552, 185 L.Ed.2d 696, 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, Supp., §339A.)

(g) Exigent circumstances exception. A warrantless search of a cell phone may be justified, on a case-by-case basis, by the exigent circumstances exception. For example, this exception might justify a warrant search where a suspect is texting an accomplice who is feared to be preparing to detonate a bomb, or where a child abductor may have information about the child’s location on his or her cell phone. (134 S.Ct. 2494, 189 L.Ed.2d 451.)

One justice, concurring in part and concurring in the judgment, wrote separately (a) to contest the notion that officer safety and the preservation of evidence are the exclusive, or even the primary, reasons for allowing a warrantless search incident to arrest; and (b) to suggest that legislatures are in a better position than the courts to assess and respond to present and future technological changes. (134 S.Ct. 2495, 189 L.Ed.2d 453.)

Witkin References

On search incident to arrest generally, see 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, §188 et seq.

On search of person or effects incident to lawful arrest generally, see 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, §191 et seq.

On authority to search based on lawful arrest, see 4 Cal Crim. Law (4th), Illegally Obtained Evidence, §191.

On search of cell phone under California law, see 4 Cal Crim. Law (4th), Illegally Obtained Evidence, §196.

On applicability of federal test to search of person or effects incident to arrest after Proposition 8, see 4 Cal. Crim. Law (4th), Illegally Obtained Evidence, §195, 1 Cal. Evidence (5th), Introduction, §8, 9.

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Last updated
Tuesday, September 23, 2014