By Lexi Gonzales*
On June 25, 2014, the U.S. Supreme Court, in a 9-0 decision, ruled that the United States Constitution requires police to have a warrant to search a cell phone of an arrested person. The highest criminal court in Texas reached the same conclusion in an opinion earlier this year, on February 26, 2014.
As technology has advanced, so has our ability to carry valuable information within our pockets, bags, and purses. According to the Court’s opinion, “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.”
Officers must obtain a warrant to search a cell phone that has been seized incident to an arrest. To search a cell phone without a warrant is an unreasonable search, which violates a person’s Fourth Amendment rights.
The Fourth Amendment states, “The right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons things to be seized.” According to the Court, the text makes it clear that a warrant is needed.
Warrants ensure that there is support for a search “drawn by a neutral and detached magistrate instead of being judged by officer engaged in the often completive enterprise of ferreting out crime” Johnson v. United States, 333 U. S. 10, 14 (1948).
The ruling of the U.S. Supreme Court does not mean a cell phone is immune from a search; it means that a warrant is usually need before a search of a cell phone. There are exceptions for “reasonableness” warrantless searches, according to the Court.
Chimel v. California, 395 U. S. 752 (1969), laid the ground work for “reasonableness” of a search incident to arrest:
“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction….There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ —construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 762-763.
Officers are able to seize a cell phone to inspect its physical aspects to ensure that it cannot be used as a weapon, but they cannot access digital data stored within the cell phone because that data cannot harm the officer or anyone else. Cell phones also can be seized in order to prevent destruction of evidence while seeking a warrant. Supporters of a warrantless search argued that it is possible for one to destroy evidence by remote wiping and/or data encryption. A third party can send a signal to the seized cell phone and cause stored data to be erased. The supreme Court did not agree, suggesting that to prevent this, an officer is able to go in to change a setting within a cell phone if the phone is unlocked or shut off after it has been seized. Once those settings have been changed, they may not proceed to search digital data without a warrant.
So what must the police do in order to search a cell phone seized incident to an arrest? According to the U.S. Supreme Court’s Opinion, it is “simple—get a warrant.”
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