In what could turn out to be the only decision to make me smile all term, the Supreme Court ruled unanimously today that the police need a warrant before they search your cellphone. The decision relied heavily on how common cellphones have become, such that, as Chief Justice Roberts wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” This makes cellphone different from purses and address books, which can be searched incident to a lawful arrest without a warrant.
The Court issued its sweeping decision in a case called Riley v. California. David Riley was stopped by the police for driving with an expired registration tag. When Riley’s name was run by the police, it turned out that his license was suspended, so he was arrested on the spot. In doing an inventory search of the car, the police found weapons, leading to weapons charges. Upon his arrest, the police seized Riley’s cellphone from his pants pocket and then searched it without a warrant. The smartphone had several contacts preceded by the letters “CK” – which stands for “Crip-Killers,” a nickname for members of the Bloods gang.
[[I bet you didn’t know that. Don’t say you didn’t learn anything from this post. And I risked sounding thousands of NSA alarms by searching for this image: 
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Back to the case: Riley was charged with many serious crimes based on what the police found on his phone. He made a motion to suppress the evidence, arguing that the police needed a warrant.
The Supreme Court overwhelmingly agreed, clearing up lots of inconsistent rulings on this issue around the country. The Court decides whether to apply an exception to the Fourth Amendment warrant requirement, “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Riley v. California (internal citations omitted). Here, the government interests in the searching the cellphones are weak: they do not pose a physical threat to officers and won’t help an arrestee escape. The government focused on arguing that the search is necessary to prevent the destruction of evidence, but the Court was unconcerned, reasoning that the threat of remote wiping is out the defendant’s control and very unlikely.
On the other hand, the intrusion on an individual’s privacy is significant when a cellphone is searched. In a great quote, Justice Roberts writes that comparing cellphones to other physical items like purses and address books that can be searched incident to arrest, “is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Riley v. California Instead, the Court found that a cellphone is more like a “digital diary” recording an individual’s every move in some capacity. Scary when you think of it that way, isn’t it (also scary is the data cited in the opinion that 12% of people admit to using their cellphones in the shower. What are you people doing?).
In summary, privacy wins, big time. There is a serious cost to privacy, because cellphone data is used effectively by the police to catch criminals. But our Founding Fathers knew there would be a cost to providing individual rights, and decided to amend the Constitution anyway, so as to protect against the reviled “writs of assistance” of the colonial times, which allowed British officers to search through homes without limit. I am confident that John Adams wasn’t imagining cellphones, but according to the Supreme Court, cellphones deserve privacy.
4 Comments
Peter Serafini posted on June 26, 2014 at 7:55 am
Reminds me that I need to get a new inspection sticker. So is there any clause that gives police the right to search cellphones if there is imminent danger? I’m also guessing the CIA can still search phone records at will, right?
Professor Spooner posted on June 26, 2014 at 9:13 am
Hi Peter. Yes, we should all keep our registrations up to date. As for your questions, there is an exception to the warrant requirement called “exigent circumstances” — or in plain language, an emergency. The Court discussed this exception in addressing the prosecution’s concerns about inability to search a phone. It would apply, for example, to allow police to search a cell phone in the case of a missing child, or an imminent terrorist threat. Because this emergency exception applies, the police need not rely on the search incident to arrest exception.
As for the NSA, that is an entirely different animal. The Executive branch has certain “war-time” powers that are relied on in CIA activities to protect us from terrorism. Of course, there is a lot of debate as to the ethics and legality of the NSA’s action. For a worst-case scenario, watch the last season of The Good Wife, where a lawyer represents an alleged terrorist, gets on the NSA listen list, and then the prosecutor’s office gets access to lots of information.
Michaela Ragaisis posted on June 28, 2014 at 12:36 am
I think its unfortunate that the police created an issue in a rather solid case against a notorious gang member by searching his phone when they had already had multiple charges against him.
On the ruling of cell phones, I am pleased that the police are not allowed to search my phone at their whim. While those “digital diaries” could help catch plenty of criminals who communicate digitally about their crimes, it also puts general privacy in danger.
And even though the police can’t search our phones without a warrant, privacy is still becoming less and less private every year. Even your comment about the NSA being alerted of your google image search is proof that privacy is disappearing. Hopefully these rulings, little by little, keep our lives semi private in this social media era.
Aaron Lemmon posted on September 2, 2014 at 10:40 pm
Many, even most basic tools for privacy (encryption, auto-wipe, etc.) are never activated on many smart devices. Of course, the government has any number of tools for getting around such requirements, but I am still astounded at the number of USB drives and similar items which are frequently lost, given the HIPAA and equally punitive consequences for loss of such information under state and federal law. Ironically, the criminals have at least learned to take such basic precautions, leaving the rest of us as common exceptions.