While preparing to teach a recent class about search warrants for digital devices, I spoke with a number of experts in digital forensics. Each conversation was very helpful. Almost all of them touched on an issue I’d never previously considered: whether search warrants for cell phones do or may include the authority to search connected cloud services. Continue reading
Tag Archives: cell phones
A few weeks ago I participated in a seminar on digital evidence, and one of the topics we discussed was cell phone records (subscriber information, call detail records, historical location data, etc.). That’s not surprising, since the widespread use of cell phones has made these records an increasingly common and important tool in criminal cases. Location data can help prove that the defendant was in the victim’s house at the time of the murder, call logs can help prove the co-conspirators were in regular contact with each other, and so on.
What did surprise me was when I asked a group of 75+ prosecutors how often they have used an affidavit to authenticate these kinds of records and get them admitted into evidence, without the need for live testimony by a witness from the company? Only one prosecutor had ever done so, and that was in a case with a pro se defendant. There seemed to be a lot of confusion about (i) whether this was even possible, (ii) old rules vs. new rules, and (iii) state court vs. federal court, so I thought this post would be a good opportunity to help clear things up. Continue reading →
When a Person Commits a Crime, Is There Probable Cause to Search the Person’s Phone for Evidence?
The question in the title of this post is one that I’ve been asked lots of times in different factual contexts. The basic question is, given that most people have cell phones, and that people tend to use their phones to document and to communicate about just about everything that they do, is it reasonable to believe that a person who has committed a crime has evidence of that crime on his or her phone? Continue reading →
Should an Officer Use His or Her Personal Cell Phone to Take Work-Related Photographs?
I’ve been asked several times lately whether it is a good idea for an officer to use his or her personal cell phone to take work-related photographs, such as photographs of a crime scene or photographs of seized items. In this post, I explain why I think that’s OK, so long as it is consistent with agency policy. Continue reading →
Law enforcement officers often seek search warrants for suspects’ cell phones. When they do, judicial officials must determine what sort of evidence is needed to support the issuance of a warrant. Many people have their phones with them at all times, and use their phones to document and discuss every aspect of their daily activities. Does that mean that when an officer has probable cause to believe that a suspect committed a crime, the officer automatically has probable cause to search the suspect’s cell phone for evidence of the crime? Or does the officer need a more specific nexus between the crime and the phone?
I’ve had the same question several times recently: can a magistrate issue a search warrant for a computer or a cell phone? The answer is yes. This post explains why that’s so, and why there’s some confusion about the issue. Continue reading →
Holding Jurors in Contempt for Cell Phone Use
Courts around the country have struggled to address inappropriate cell phone usage by jurors. Some judges have used their contempt powers to deal with the issue. In Oregon, a judge held a juror in contempt for texting during a trial, and the juror spent a night in jail as a result. In Florida, a judge cited a juror for contempt for using Facebook during trial. And now, the issue has cropped up here in North Carolina. Last week, Superior Court Judge Milton “Toby” Fitch held a juror in a civil case in contempt for using his cell phone to take notes about the trial, and sentenced the juror to 30 days in jail. The Wilson Times has the story here. The News and Observer has an AP story with some additional details here. Continue reading →
New Cumulative Supplement to Arrest, Search, and Investigation in North Carolina and Recent Cases Since Its Publication
The 2014 Cumulative Supplement to Arrest, Search, and Investigation in North Carolina (4th ed. 2011) is now available. It is called a cumulative supplement because it includes the material in the 2013 supplement so you only need the book and the 2014 cumulative supplement to be current. You may order it online here or contact the School of Government Bookstore Manager at 919.966.4120. Continue reading for additional details.
Yesterday, the Supreme Court issued a long-awaited opinion concerning searching cell phones incident to arrest. The Court ruled that the search incident to arrest exception to the warrant requirement doesn’t apply to cell phones. North Carolina law previously allowed such searches, so the opinion is significant.
The facts of the cases. The Court ruled on two cases: Riley v. California and Wurie v. United States. The opinion is captioned with the Riley case name. Riley began with a traffic stop, which led to a gun arrest, which led to a phone search, which revealed evidence that linked the defendant to a shooting. Wurie began with a drug arrest, which led to a phone search, which revealed the location of the defendant’s residence, which enabled officers to obtain and to execute a search warrant for the home, which led to the seizure of drugs and firearms.
The lower court rulings. Both defendants moved to suppress, arguing that the searches of their phones incident to arrest violated the Fourth Amendment. Both motions were denied at the trial level, and both defendants were convicted. On appeal, defendant Riley lost, while defendant Wurie won. The Supreme Court agreed to review the cases together.
The Supreme Court’s ruling. The Court ruled 9-0 for the defendants. The lead opinion was written by Chief Justice Roberts. The Court stated that searches incident to arrest generally are justified (a) to ensure that the arrestee doesn’t have a weapon, and (b) to prevent the arrestee from destroying evidence. But, it continued, cell phone searches don’t implicate those concerns. “[O]fficers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon,” but the data on the phone doesn’t pose a risk of physical harm. And there is little risk that the data on a phone will be destroyed by the arrestee. The Court indicated that an arrestee’s phone may be seized while officer seek a search warrant. The prosecution argued that even seized phones could be locked or remotely wiped if not inspected immediately, but the Court found little reason to believe that these practices were prevalent or could be remedied by a search incident to arrest. Further, the risk of such practices can be managed by using Faraday bags and other tools. Thus, the Court found little justification for allowing phones to be searched incident to arrest.
On the other side of the ledger, the Court found a strong privacy interest militating against such searches. It noted that phones often contain vast quantities of data, making a search intrusive far beyond the mere fact of arrest itself and far beyond the level of intrusion associated with more traditional searches of pockets, wallets, and purses incident to arrest. Indeed, many phones can access data stored on remote servers, making a search extend far beyond the immediate area of the arrestee. Emphasizing the need to establish a clear and workable rule, the Court therefore categorically exempted cell phones from the search incident to arrest doctrine.
Comments. A few things struck me about the Court’s ruling:
- One, the phone in Wurie was a flip phone, while the one in Riley was a smart phone. The Court’s holding was not dependent on the capacity of the device, and seems certain to apply to other forms of electronic devices that are carried frequently, such as tablets and laptops. In fact, the Court at one point referred to phones as “minicomputers.” More generally, the Court seemed to view the dawn of the digital age as a significant development for Fourth Amendment purposes. Combined with the Court’s 9-0 vote against warrantless GPS tracking in United States v. Jones, it seems that the Court may believe that emerging technologies require a new approach to the Fourth Amendment.
- Two, the Court acknowledged that in some cases, other doctrines might support a warrantless search of a phone. For example, if there were reason to believe that a violent crime were unfolding and that evidence of the crime was on the phone, exigent circumstances might support the search. And of course, officers may ask for consent to search an arrestee’s phone.
- Three, still, this opinion likely will cut down on warrantless phone searches . . . and accordingly may increase the number of search warrants that are sought for phones. Officers should bone up on how to draft warrant applications in such cases, and the courts should prepare to see more applications and to handle more litigation over warrants.
- Four, the opinion suggests that data stored in “the cloud” is protected by the Fourth Amendment. One of the justifications that the Court provides for why cell phone searches are more intrusive than searches of physical objects is that phones may be connected to remote servers. For example, my iPhone is connected to Yahoo!’s servers so that I can access my email. If this feature makes phone searches more intrusive, it would seem to follow that the remote data is generally subject to an expectation of privacy. That suggestion is significant, as many courts have viewed such data as having no constitutional protection as a result of the third-party doctrine of Smith v. Maryland.
- Five, get ready for the debates over retroactivity and related issues.
What’s your reaction to the decision?
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.