To Search a Cell Phone: Supreme Court Tells Police- “Get a Warrant”

textingIn June of this year, the U.S. Supreme Court ruled “unanimously” that the police need a warrant to search the cell phones of people that they arrest.  See Riley vs. California and U.S. vs. Wure, decided June 25, 2014.  Police normally are permitted to search the person and “personal effects” of those they arrest without a warrant by the doctrine of “search incident to a lawful arrest”.

But in an opinion hailed as a major victory for privacy in the digital age, Chief Justice John Roberts wrote that cell phones are tiny computers that contain the “privacies of life”.  In fact, the Supreme Court recognized that the word cell phone is a misnomer because they could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers.

The Supreme Court acknowledged that the decision would make law enforcement more difficult.  “Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises and can provide valuable incriminating information about dangerous criminals.”  But Chief Justice noted, “privacy comes at a cost.”

The decision will not mean the end of cell phone searches.  The police can get a warrant or can ask the owner of the phone for consent to search.  The decision, however, brings the Fourth Amendment into the 21st century.  The core of the decision is that digital information is different and triggers privacy concerns that are more serious than in objects like purses and wallets.

The key question for police, prosecutors and defense attorneys will be the lengths to which the Court will extend the Riley decision.  The ruling almost certainly applies to searches of tablet, iPad and laptop computers.  But does the ruling apply to other investigative techniques that law enforcement uses during investigations on a daily basis?  For example, does law enforcement need a warrant before activating a “Stingray phone tracker”?  The Stingray, discussed in a previous blog, is a controversial electronic device that mimics a cell tower allowing it to capture data from mobile phones.  Criminal defense attorneys can now argue that Riley requires law enforcement to obtain a warrant before using devices like the Stingray and/or utilizing methods like “pings” or obtaining records from cell phone providers or companies like Facebook.

Likewise, what effect does Riley have upon information stored in a cloud and the privacy concerns therein?  If one turns over private data to a third person, i.e., a cloud storage provider, can law enforcement obtain that information without a warrant?

An individual under investigation for a criminal offense or one who is already charged must retain not only experienced counsel but also one who is knowledgeable in cyber techniques utilized by law enforcement.

If you need a lawyer for a criminal or Federal case, call Attorney W. Joseph Edwards (614-309-0243) who has over 25 years experience representing clients in these legal matters.

 

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