Fourth Amendment & Need for Warrants to Search Cell Phones Incident to Arrest

Philadelphia, PA January 30, 2014 – Need for Warrants to Search Cell Phones

The U.S. Supreme Court has granted review in two cases that could be pivotal in defining privacy rights in the digital era.

Hope C. Lefeber, a leading Philadelphia and New York City criminal defense lawyer, discusses the potential impact of the development.

On Jan. 17, 2014, the justices agreed to review two cases concerning police searches of cell phone information.

These cases, one originating in the state of California and the other originating in the First Circuit Court of Appeal, reached opposite conclusions on the issue of whether police need a warrant to search a cell phone.

“The decisions in these cases will impact all of us,” said Lefeber. “The main question is when the police make a car stop or other stop and make an arrest, can they search your cell phone on the spot without a warrant?

What kind of privacy would we have if our cellphones, emails, and Internet searches could all be seized and searched by the police without a warrant based upon probable cause?”

The first case is Riley v. California, 2013 WL 3938997 (January 17, 2014), wherein the justices will decide whether evidence linking him to a murder which was obtained by searching a man’s cell phone upon his initial arrest for driving with expired license plates, violated his Fourth Amendment rights under the U.S. Constitution.

In 2009, David Leon Riley was stopped by police for driving with expired tags. After police discovered his driver’s license also was suspended, they impounded his car.

A search of the car turned up concealed weapons, and Riley was arrested. Police confiscated his smartphone and searched it twice, according to court records, without getting a warrant first. Riley was later convicted for playing a role in a gang shooting, based on evidence found in his phone and admitted at trial.

The second case is U.S. v. Wurie, an appeal from a decision by the U.S. Court of Appeals for the First Circuit, 728 F. 3d 1 (1st Cir. 2013), wherein the First Circuit reversed the lower court’s denial of a motion to suppress and held that the search incident to arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee’s person.

At issue in that case is whether the Fourth Amendment permits police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested. In the Wurie case, police stopped Wurie after they observed what they believed was a drug sale in his car. They found crack cocaine in his car, read him his Miranda rights and took him to the police station. When Wurie arrived at the police station, officers accessed his cell phone and used the evidence derived therefrom at trial.

“He was pulled over for a traffic violation. That could happen to anybody,” Lefeber said. “Let’s say you’re stopped for running a red light; and you are arrested for some minor violation, the cops then take your cell phone and find all your emails, everyone you’ve called, things you’ve downloaded from the Internet.

How is that different than a search of your home or your home computer?

You might have all kinds of privileged information in there.

Next thing you know, they’re charging you with fraud based on something they found in your phone.”

The Supreme Court review is expected to resolve disagreement on the issue amongst appellate courts in the nation, Lefeber said. The cases will be argued during the court’s session beginning April 21.