OSBA | Police and privacy: Is a warrant required to search your cellphone?

See - OSBA | Police and privacy: Is a warrant required to search your cellphone?





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Warrantless searches are permitted in some instances

Generally, the Fourth Amendment requires police to first obtain a warrant before searching a person or their belongings. However, there are several instances where warrants are not required. In 1973, the Supreme Court held that police officers did not need a warrant to look inside objects found on someone’s person during arrest if the object had unidentified contents, such as a pack of cigarettes, a wallet, or a purse that might contain a weapon.⁴ Warrantless searches can also be imposed on the contents of a vehicle when its driver is being arrested, on students when they desire to engage in sports, band, chorus, or academic competitions, and on students and their belongings when on public school grounds if there is “reasonable suspicion” that the student has violated the law or a school rule. These kinds of warrantless searches are permitted to protect the public and police officers from physical harm and to prevent the destruction of evidence.

Digital is different

According to the Supreme Court, the “digital data stored on cell phones does not present either [a] risk” of imminent physical danger or evidence destruction.⁵ Since the data on a cellphone cannot itself be used as a weapon and the extent to which the cellphone data could possibly warn officers of impending physical danger to themselves or the public is limited, searching the cellphone data under the guise of officer safety was not a concept that the Court wanted to embrace. Further, there are several simple and cost savvy ways for officers to protect against the destruction of digital evidence that may be stored in a cellphone.

When conducting any search, the counterbalancing consideration to protection and enforcement of the law is the level of intrusion that searching a person or their belongings imposes. The “degree to which [searching a person or their objects] intrudes upon an individual’s privacy” must be reasonable in light of “the degree to which [the search] is needed for the promotion of legitimate governmental interests.”⁶In their June 25, 2014, opinion, all nine Justices joined forces to deem police searches of cellphone data overly intrusive. Per the Court, “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”⁷ “Cellphones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person,” Chief Justice Roberts writes for the Court.⁸ “Notably, modern cell phones have an immense storage capacity.”⁹ Cellphones like Riley’s and Wurie’s “are based on technology nearly inconceivable just a few decades ago,” when the Court issued its 1973 opinion permitting warrantless searches of arrestees.¹⁰ In sum, digital is different. The Court notes, however, that police can still rely on the exigency exception to the Fourth Amendment to search digital data on cellphones without a warrant.¹¹An exigent circumstance would be akin to disarming a ticking time bomb or locating an abducted child. Absent these extremely rare circumstances, the officer must secure a warrant to search the phone’s contents. And, of course, “law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case.”¹² Furthermore, to prevent data wiping or encryption, the Court instructs law enforcement officers to simply turn off the phone, remove its battery, or place it in a cheap “sandwich bag made of aluminum foil.”¹³

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