In a landmark decision protecting Americans' digital privacy, the U.S. Supreme Court ruled unanimously on Wednesday that police almost always need to get warrants to search the cell phones of people they arrest.
"Modern cell phones are not just another technological convenience," wrote Chief Justice John G. Roberts Jr.. "With all they contain and all they may reveal, they hold for many Americans the 'privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple -- get a warrant."
Peter Joy, a professor at Washington University Law School and director of the Criminal Justice Clinic, said, "The court got the cell phone case right. Searching a cell phone after an arrest isn't any more justified than it would be for the police to decide to go to the arrestee's home and search the home without a warrant. The cell phone searches are no more than fishing expeditions. If there is probable cause to believe that there is specific evidence of a crime on the phone, then the police could obtain a search warrant. As the court points out, the information on the cell phone does not fit any of the existing exceptions to permitting a warrantless search."
New technology poses challenge for court
The cell phone decision, coupled with one two years ago limiting the use of GPS data to track criminal suspects, demonstrates that the court is responding to the threats that modern communications technology pose to privacy.
The chief justice acknowledged that the court was making it more difficult for police. "We cannot deny our decision today will have an impact on the ability of law enforcement to combat crime. 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. Privacy comes at a cost."
The decision involved two cases, one involving a smart phone and the other a flip phone. But the result was the same.
- In a case from California, David L. Riley was pulled over in San Diego for an expired auto registration. Police found loaded guns in his car. Riley's smartphone contained entries associated with the Bloods street gang and he was linked to a shooting. Riley was convicted of attempted murder and sentenced to 15 years in prison.
- In the second case, Brima Wurie was arrested in Boston on drug charges. Calls to his flip phone enabled police to locate his apartment where they found drugs and a gun. He was convicted of firearms and drugs charges.
The court ruled that both searches violated the Fourth Amendment, which protects people from unreasonable searches.
In recent decades, the Supreme Court often has made exceptions to the warrant requirement of the Fourth Amendment. One of those exceptions is for searches following an arrest. This exception has two rationales.
- One is police safety -- to make sure the prisoner can't reach a weapon.
- The other is to discover the fruits of a crime.
Under these exceptions the court allowed police to search a crumpled cigarette package in a prisoner's pocket that turned out to have drugs, but it did not approve of a search of a person's entire apartment at the time of an arrest.
Roberts said that neither rationale justified a search of a cell phone found on a suspect. Police can examine the phone to make sure that it can't be used as a weapon. And they can examine the phone for evidence after getting a warrant if they have probable cause to believe they will find evidence of a crime.
Examining a crumpled cigarette pack bears little similarity to examining a cell phone that contains millions of pages of documents about a person's personal life, he wrote.
In certain extraordinary circumstances where public safety may be threatened, police could use a separate exception to the warrant requirement -- the exigent circumstances exception -- to stop a prisoner from setting off a bomb or communicating with co-conspirators. The chief justice said this would "address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child's location on his cell phone."
Roberts wrote at length, and with a tone of awe, about what a revolutionary and unforeseen technology of cell phones. He wrote they "are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."
He remarked that three-fourths of smart phone users say they are within five feet of their phones most of the time and 12 percent admit to looking at the phones in the shower.
The chief justice said that a cell phone in a pocket is much different from a wallet or crumpled cigarette wrapper:
"Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person. The term 'cell phone' is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos."
He reasoned that storage capacity "has several interrelated consequences for privacy.
- "First, a cell phone collects in one place many distinct types of information -- an address, a note, a prescription, a bank statement, a video -- that reveal much more in combination than any isolated record.
- "Second, a cell phone's capacity allows even just one type of information to convey far more than previously possible. The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.
- "Third, the data on a phone can date back to the purchase of the phone, or even earlier....
- "Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day."
The use of apps only increases the amount of private information on cellphones, Roberts wrote. And cloud storage made it problematic to apply a search incident to arrest exception to data that was not even in the vicinity of the person arrested.
Roberts acknowledged police concerns that a prisoner's cellphone could be wiped clean of evidence by remote command or that it could be encrypted through a locking system. But he said police had ways to deal with these problems. By disconnecting the phone from the web, police could remove the possibility of remote destruction of evidence. And they could counter encryption by putting a cellphone in a bag that is impervious to radio waves.