For the past century, the United States Supreme Court has given the police the right to search (without a warrant) a person who has been legally arrested. See Weeks v. United States, 232 U.S. 383, 392 (1914). Unfortunately, as a criminal defense attorney, I will tell you this can make defending someone who has been searched difficult, depending on what may have been found in that search.
Given the sheer volume of arrests that occur each day in our country, it does not take a rocket scientist to figure out that warrantless searches incident to an arrest occur with far greater frequency than searches conducted pursuant to a warrant.
A search incident to a lawful arrest is routinely permitted on the grounds of:
- officer safety; and
- evidence preservation.
Not only would an officer’s safety be at jeopardy if he was not permitted to search for weapons, but a concealed weapon could easily be used to facilitate an escape and, thus, thwart the underlying arrest. The courts have also consistently given the police the right to simultaneously search for and seize any evidence found on the arrestee’s person to prevent its concealment or destruction.
When modern smart phone technology came on the scene a few years ago, police officers simply used their time honored search and seizure guidelines. If a cell phone was found in an arrestee’s pocket, cops felt free to seize and leisurely search all digital data contained on that phone. These post-arrest data searches included a complete review of all:
- contact information;
- call logs;
- text messages;
- photographs and videos;
- internet browsing history;
- social media posts;
- and (9) private banking information.
In a recent decision, Riley v. California, (decided June 25, 2014), the Supreme Court brought the warrantless searches of cell phones to a screeching halt. The Court noted that, while the physical frame of a cell phone may conceal a razor blade, the digital data stored inside could never be used as a weapon or to effectuate an escape.
Because a cell phone is subject to both “remote wiping” and “data encryption,” the government attempted to use evidence preservation to justify warrantless cell phone searches. In rejecting both these arguments, the Supreme Court noted that remote wiping can be prevented by simply disconnecting the phone from the network. Data encryption is something the phone’s software does on its own. Thus, the Court found no post-arrest conduct by the defendant to prevent the government’s access to the digital data.
The Supreme Court emphasized that, just because modern technology permits a person to carry the “privacies of life” in the palm of his hand, does not make that “information any less worthy of the protection for which the Founders fought.” If the police want to search the data stored on your cell phone, they must have either your consent or a warrant.
Never give the police consent to search the contents of your cell phone. Demand that a warrant be obtained and then call our office immediately to speak one of our experienced criminal defense attorneys.