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15Dec2014

Limits of Warrantless Cell Phone Searches: What Law Enforcement Needs to Know

By Justin Fitzsimmons

mobile phoneEarlier this year, the United States Supreme Court issued clear guidance to law enforcement when it comes to cell phone searches. The Court essentially said that you must get a warrant to search a cell phone, even if you come in contact with that phone during an arrest.

In its decision, the Court helped to bring the Fourth Amendment into the digital age. It’s likely that this is just the beginning for new rules on how law enforcement handles digital evidence in the 21st century.

The particulars of the decision are explained in detail in a new SEARCH publication, U.S. Supreme Court Limits Warrantless Cell Phone Searches. (Distribution of this document is limited to law enforcement professionals. Request this and other law enforcement-sensitive documents from our Publications search page: http://www.search.org/resources/publications/publications-search/)

The Court based its decision on two unrelated cases: Riley v. California and United States v. Wurie. These two cases shared a common thread in that both questioned whether the police could search a seized cell phone if they didn’t have a warrant. The Court ruled on the two cases together, and according to Chief Justice Roberts, hoped to “provide clear guidance to law enforcement through categorical rules” instead of miring lower courts in continuous review of whether the “search incident to arrest” doctrine was permissible.

It appears, however, that the Court left at least a window cracked for some avenues of a warrantless search. The Court indicated that it intentionally left open the possibility of exigent circumstances justifying a warrantless search of mobile devices in the future, predicated on the right circumstances presenting themselves.

The Court outlined several different scenarios where this might apply, including:

  • Preventing a remote wipe or encryption fact pattern
  • Pursuing a fleeing suspect
  • Assisting individuals who are seriously injured or threatened with imminent injury
  • Preventing communications between co-conspirators in a terrorist plot
  • Investigating child abduction, where information about the child’s location may be contained on an abductor’s phone

To the exigent circumstances rationale, the Court noted that each of the scenarios would require a lower court to examine whether the exigency justified the warrantless search. So while Riley v. California takes lower courts out of the daily “search incident to arrest” equation, it leaves it up to them to determine the exceptions for exigent circumstances.

The Court also touched on cloud computing and privacy implications. It said that the government concedes that the search incident to arrest exception does not extend to files stored in the cloud. This means that any officer encountering cloud-based data, or access to this data, needs to secure a warrant specifically designated for that data.

JustinFitzsimmonsAbout the Author

Mr. Justin Fitzsimmons is Program Manager of High-Tech Crime Training Services for SEARCH. He conducts legal, policy, and regulatory research, prepares white papers, and provides assistance and instructional services to justice, public safety, and homeland security agencies, particularly in digital evidence recovery, investigation, and prosecution. SEARCH provides training to justice, public safety and homeland security agencies nationwide, including on digital evidence investigations.

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