Jacquelyn Ford Law, P.C.

Where will the US Supreme Court draw the line in cellphone searches?

The U.S. Supreme Court will soon decide whether police can search cellphones at the time they arrest an individual without needing a warrant.

The courts have struggled with this question. Answers have differed by federal circuit and state. Almost everyone has a smartphone, so the ultimate decision has a wide-ranging impact. These miniature computers contain immense amounts of personal information. A photo might be enough to support a drug crimes charge, for example.

The Fourth Amendment protects individuals from unreasonable searches and seizures. In addition, a search warrant cannot be issued without probable cause. There are several exceptions to the warrant requirement and police have long been able to search a person when making an arrest.

A recent case U.S. Supreme Court case asks the justices to decide when law enforcement officers can search a person’s smartphone without a warrant at the time of an arrest.

The case arises from the stop of David Riley for expired tabs in San Diego. When police impounded and inventoried his car, they found guns under the hood. A search of his cellphone turned up evidence that he was involved in gang activity. A gang investigator later went through the phone’s digital files and downloaded contacts. He found information that prosecutors then used to convict Riley of several felonies.

Questions indicate a divided court

At the Supreme Court oral arguments, Riley’s attorney argued that the rationale for allowing warrantless searches at the time of arrest is to protect officer safety and prevent the destruction of evidence. A phone is not likely to be destroyed, so there is time to seek a warrant. Requiring a search warrant would allow a neutral magistrate to limit the scope of a search and the retention of downloaded information.

Prior case law has allowed police to search a diary or photos in a billfold. Justice Samuel Alito made the point that police could look at photos in a wallet and a cellphone just contained them in a digital format. Justice Sonia Sotomayor drew the distinction between several photographs in a wallet and “potentially thousands” in the cellphone.

Justice Elena Kagan expressed concern that a person could be arrested for a minor offense “including driving without a seat belt” and have their cellphone searched. She worried about the amount of information stored in a cellphone that could be open to search including intimate communications, as well as GPS location information, calendars and medical data.

Several of the other justices were most concerned about creating a rule that would work for everyone arrested. Justice Antonin Scalia suggested a rule limiting a search to evidence relevant to the crime that prompted the arrest. Prosecutors argued for a broader rule. Where exactly to draw the line will prove a challenge and if not spelled out clearly could result in even more cases.

There will likely be a decision before late June. This case demonstrates how criminal law is constantly changing.

If charged with a crime, speak with a local criminal defense attorney as soon as possible. There may be defenses available based on the way a search was completed. If an improper cellphone search occurred, prosecutors may not be able to use the evidence at trial.