Yesterday, the Supreme Court heard two cases regarding whether law enforcement officers may search a suspect’s cell phone incident to arrest. Generally, the answer to that question in North Carolina has been yes, as I discussed here. But it sounds like a new rule may be coming soon.
The cases. In United States v. Wurie, the police arrested the defendant after they saw him sell drugs. They searched his flip phone, finding a phone number identified as “home.” They used the number to find his residence, which they subsequently searched, finding drugs and a gun. In Riley v. California, the defendant was stopped for driving with expired tags. A search of the car turned up two guns, and the defendant was arrested. The police search his phone, finding photographs and call records that helped to link the defendant to a shooting. In both cases, the defendants argue that the cell phone searches violated the Fourth Amendment.
The legal issue. The Supreme Court has long held that law enforcement officers may search arrestees incident to their arrest without a warrant. This is permitted so that officers can prevent the destruction of evidence and uncover weapons, and the search authority extends to items within an arrestee’s immediate control. See, e.g., Chimel v. California, 395 U.S. 752 (1969). The issue in the two cases before the court is whether cellular phones – and by extension, other portable electronic devices like tablets and laptops – may be searched pursuant to this rule, or whether they should be treated differently because they can contain mountains of personal information, far more than can be wedged into a wallet or a purse.
The oral arguments. The transcripts of the oral arguments are here, and articles about the proceedings have appeared on SCOTUSblog, ArsTechnica, the Volokh Conspiracy, and elsewhere. Although predicting case outcomes based on oral arguments is a tricky business, most Justices seemed to think that there should be a different rule for electronic devices, i.e., that a full-fledged search of an arrestee’s iPhone after an arrest for a minor misdemeanor is unreasonable. Yet there was not much support for the idea of always requiring a warrant for such searches. Instead, the Court seemed to be looking for a middle ground, perhaps along the lines of the rule for vehicles announced in Arizona v. Gant, 556 U.S. 332 (2009) (allowing searches of a vehicle incident to the arrest of a recent occupant only when the arrestee is unsecured and could reach into the vehicle or when there is reason to believe that evidence of the crime of arrest will be found in the vehicle). Any compromise rule may be difficult to administer, however.
Advice for now. Two groups that need to do things now in anticipation of the eventual ruling are defense lawyers and officers. Defense lawyers should be making Fourth Amendment arguments in cell phone search cases to preserve the issue in case the law changes in a direction that is favorable to their clients. And officers may wish to handle cell phone searches more cautiously to insulate their cases from attack under whatever rule the Court eventually announces. For example, where officers have probable cause to search an arrestee’s phone, they may wish to get a warrant rather than conducting a warrantless search incident to arrest. And when an officer does search a phone incident to arrest, the officer may wish to limit the scope of the search to areas where evidence of the crime of arrest may be found.
Stay tuned. Of course, we will blog about the opinion when it comes out. The summer recess isn’t far away, so it won’t be long.