Police need warrant to search your cell phones

The Supreme Court decided Riley v. California yesterday–a landmark Fourth Amendment case.  This post will discuss what the case is about and why its important to you.


iphone4 Whether police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested?


No.  Police are required to get a warrant to search your cell phone if you are arrested unless there are exigent circumstances.


The Court considered two separate cases:  (1) David Riley Case; and (2) Brima Wurie case.  The Court in both cases determined that evidence obtained from a warrant less search of a cell phone incident to arrest violated the Fourth Amendment. The facts of each case are described below.     

David Riley Case

The first case involved David Riley, a defendant who was pulled over for driving with an expired registration.  After the stop, police learned Riley had a suspended driver’s license.  Police impounded his car and conducted an inventory search.  They found weapons hidden under the hood.

Riley was arrested and police searched the digital contents of his cell phone found in his pant pocket.  The cell phone had photos linking Riley to a drive-by shooting that occurred weeks earlier.  The phone also contained a video of people sparring with audio indicating it was gang related.  The cell phone had references to “CK” or Crip killer that linked Riley to the “Bloods” gang.

Riley was charged with multiple crimes including attempted murder and assault connected to the earlier drive-by shooting.

Riley’s lawyer challenged the search of his cell phone, but his motion to suppress was denied.  Police then testified to the contents of the cell phone linking Riley to a gang.  As a result, Riley was convicted and received an enhanced sentence of 15 years to life in prison because the drive-by shooting was gang related.

Brima Wurie Case

The second case involved a defendant named Brima Wurie.  Police arrested Wurie after watching him make a drug sale and seized two cell phones from Wurie.

One of the cell phones was a “flip phone.”  After Wurie was arrested, his cell phone kept ringing with “My House” showing up on caller ID.  Police opened the phone and searched the call log of the phone.  (Note–the cell phone wall paper was a picture of a woman and a child, presumably Wurie’s wife and child.)

Police then used the information in the call log to obtain a search warrant to search his apartment and found 215 grams of crack cocaine. Wurie challenged the search of his cell phone, but it was denied.  He was convicted of drug charges and sentenced to 262 months in prison (or 21.83 years).

Supreme Court Discussion:

Chief Justice John Roberts wrote for a unanimous court.  (Justice Alito filed a concurring opinion).

The Fourth Amendment requires that all searches be conducted in a reasonable manner.  This generally requires police to obtain a search warrant from a neutral and detached magistrate to protect individuals’ privacy rights from overzealous officers “engaged in the often competitive enterprise of ferreting out crime.”

However, without a warrant, a search is reasonable only if it falls within an exception to the warrant requirement such as a search incident to arrest (SITA). The Court then reviewed its case law on SITA to determine if it applies to the search of smartphones such as Iphones.  [A picture of the Iphone listed above.]

The Court balanced the Government’s interest in law enforcement against and individual’s right to privacy.  It considered two related issues:  (1) need for police officer safety; and (2) the preservation of evidence.

After considering policy arguments, the Court determined that the vast amount and depth of information contained in smartphones, including flip phones, requires police to obtain a search warrant in most instances absent some exigent circumstance.

The information on smart phones includes personal pictures, personal texts, web posts, emails, date and time stamps on personal data that implicate strong privacy rights and interests.  [Click here to read an en excellent article by NPR about the digital trail that makes it easy for the government to get an intimate portrait of your personal life.]  The Court noted that this type of information is materially different from traditional information police are allowed to search incident to arrest–things such as purses, wallets, and personal effects.  It noted that its case law on search incident to arrest did not justify searching smartphones after an arrest because it would come at too high a price to our privacy rights.

The Court also stated that cell phones are not immune from being searched without a warrant.  It held only that a search incident to arrest (SITA) did not allow police to search a smartphone on the person’s possession when he was arrested.  The Court stated that exigent circumstances may allow police to search without a warrant.  This is a key distinction because a search based on exigent circumstances, unlike a search incident to arrest (SITA), requires a trial judge to review the facts of each case to determine if exigent circumstances existed to justify a warrant-less search.

[Examples of exigent circumstances–when a child is abducted, when police are trying to prevent imminent destruction of evidence in individual case, to assist someone seriously injured, or to assist someone who is threatened with physical harm.]

Why does this case matter?

This is a landmark case.  In the federal drug trafficking offense cases I have worked on–it’s almost universal for police to search the cell phone of people caught with high quantities of  cocaine, heroin, or meth without a warrant.

They use this information as evidence to show that the defendant coordinated with other drug traffickers on price, location, type, and amount of drugs to be exchanged.  The phones also contain photographs of clients with contraband.   [NOTE:  Never take a photo or video of yourself doing something illegal.  It’s foolish and if you are caught this will be exhibit A offered by the prosecutors at your trial.]

This ruling gives defendants an extra tool to chip away at an unlawful (unreasonable) search of your cellphone if you are arrested. This may lead to either reduced or dismissed charges depending of the facts of your case.  It is important that you discuss the facts of your case with your lawyer to determine if a Riley v. California motion to suppress is appropriate.

On a different note, police may shift tactics as a result of this decision.  One very common approach police use is to ask for your consent to search.  If you consent, then you are giving police permission to look through your possessions even if they don’t have reasonable suspicion or probable cause to search.  This means that if incriminating evidence is found during the search–then it will be admitted against you at trial if you give police valid consent to search.

If there is incriminating evidence on your cell phone, in your vehicle, on your person, or in your home–then never give police consent to search.  This is especially true if you are not sure if there is incriminating evidence in the places just mentioned.  Remember–its OK to say no.  But be polite, respectful, and courteous when you say no.

Click below for a news clip of this story.

Genaro R. Cortez
Phone:  210.733.7578

Supreme Court Review

Supreme Court Cert. Granted:

1.  USA v. Anthony Elonis.

Today, the Supreme Court granted cert. to review the conviction of Anthony Douglas Elonis, who was convicted of making threats in interstate commerce in violation of 18 U.S.C. 875(C).

The case arose after Mr. Elonis’s wife left him.  He made postings on his Facebook page using rap lyrics that threatened to kill his estranged wife.  The jury was instructed that if an objective person would determine his statements were threatening, then they should find him guilty.  Elonis’s attorneys wanted the jury instructed on a subjective test–whether Mr. Elonis intended his statements as threats.  He was convicted and sentenced to 44 months in prison.  One of the issues that will be addressed is whether the First Amendment requires subjective proof of the defendant’s intent to threaten.    Click here to review the procedural status posted by Scotusblog.  Click here for a Yahoo review of the story.

2.  USA v Raj Rajaratnam

The Supreme Court also denied cert on Raj Rajaratnam’s petition for writ of certiorari. (Raj’s photo is to the left of this post).  This means his conviction for insider trading will stand.  As this blog had posted before, Raj requested review on whether wiretap evidence was admissible in trial even when prosecutors made material omissions in their application for a judicial wiretap.  The Court declined to review the issue.

Genaro R. Cortez
Phone:  210.733.7575