US Supreme Court Guidance on “Searches Incident to Arrest”

The US Supreme Court (Court) has provided a much-needed, fresh look at digital privacy in the smartphone era. In two related appeals the Court has held that police may not examine the digital contents of an arrested person’s cell phone as part of a search incidental to arresting that person. The landmark decision requires police to obtain a separate warrant for the search of a cell phone found ‘within the wingspan’ of a suspect at the time of an arrest. The Court’s ruling consolidates two separate cases within the decision: Riley v California and United States v Wurie. Case 1: Riley v California, 573 US___(2014) In Riley v California, the suspect was stopped by police for a traffic violation. Police learned that Riley was driving with a suspended license and impounded the vehicle. In the course of doing so, the police found two handguns. Riley was later arrested for possession of concealed and loaded firearms. During his arrest, a cell phone was found on his person, and a search of the phone revealed that the arrestee was a gang member and had been involved in a shooting a few weeks before. At trial, Riley moved to have the evidence found on the cell phone suppressed, but the motion was unsuccessful. Riley was convicted and received an enhanced sentence owing to his affiliation with a gang. The California Court of Appeal affirmed the ruling. Case 2: United States v Wurie, 573 US___(2014) Wurie was arrested while allegedly making a drug sale. Upon arrest, the officers searched his cell phone and found a log of calls to ‘my house’, with a picture of an unidentified woman and baby. The number was traced back to an apartment building where a woman matching the description of the picture was found. The police then sought and obtained a warrant to search the premises where they ultimately found drugs and weapons. Wurie sought to have the evidence from the cell phone suppressed at trial. The motion failed and Wurie was convicted. On appeal, the Court reversed the denial of the suppression motion and ordered a retrial. That decision was appealed to the Superior Court. The Ruling Prior to this ruling, the courts had not drawn a line between digital searches and other kinds of searches. However, with the amount of personal data that police can access from a cell phone, privacy distinctions between digital media and traditional containers of information are becoming apparent. The Court has now formally recognized this distinction in the context of a constitutional violation by holding that “cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person.” (Chief Justice John G. Roberts Jr.) The Court went further:

A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

While the wider implications of this ruling are as of yet uncertain, it implies that the invasion of an arrested person’s privacy should not go beyond the intrusion occasioned by the arrest. Going forward, it seems that most cell phone searches incidental to arrest will require a warrant. The court further called for Congressional action to draw lines between data stored locally on the device of a user and data stored in a cloud. In the next issue of E-TIPS®, the writer will “compare and contrast” the emerging approaches in the US and Canada to the use of cellphone–derived evidence incidental to criminal proceedings. For more information: http://tinyurl.com/lezr35q http://tinyurl.com/awwcd4k http://tinyurl.com/la7qy65 Summary by: Jennifer R Davidson