Want to Search That Cell Phone? Better Get a Warrant

The Supreme Court laid down a marker for privacy in the smartphone era Wednesday—and Chief Justice John Roberts showed a surprising new savviness about technology.
Gary Cameron/Reuters

One smartphone owner in eight, Chief Justice John Roberts noted Wednesday, admits to sometimes taking a cell phone into the shower. (The other seven, I think, are probably lying.)

Thanks to the Court, smartphone bathers can shower assured that even if the police burst in upon them like Norman Bates in blue, seize their persons roughly, and parade them off in dishabille to be subjected to jailhouse indignities, the officers cannot amuse themselves afterwards by idly poking through the smartphones they confiscate.

For that, they need a warrant.

That’s the result in two cases decided Wednesday—Riley v. California and United States v. Wuriethat featured all but identical facts. Defendants were detained validly, one for driving with expired tags and the other for a hand-to-hand drug sale. Police searched them, as they had every right to do, and seized their phones. Without getting a warrant, they looked at the contents of each phone and found evidence that led, eventually, to much more serious charges: gang-related attempted murder in the first case and drug distribution and weapons violations in the other.

California state courts refused to overturn Riley’s conviction when he appealed the attempted murder charge, but the 1st Circuit Court of Appeals reversed Wurie’s conviction and ordered a new trial on the grounds that the warrantless search violated the Fourth Amendment’s prohibition against “unreasonable searches and seizures.”

A search with a valid warrant is virtually always “reasonable,” but a search without a warrant, is not automatically “unreasonable.” Police can search a suspect’s pockets, or briefcase, or car when making a valid arrest. Caselaw defends the exception because there may be weapons nearby or evidence of crime that could be lost. In addition, officers can search when there are “exigent circumstances,” meaning when there is no time to lose, in order, say, to stop a crime in progress, prevent suspects from destroying evidence, or rescue a kidnap victim.

The lawful-arrest exception implicates pockets and purses. Prosecutors in both cases argued chiefly that searching a cell phone is really just the same thing as searching such personal items. Roberts retorted, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”

The chief justice once suggested from the bench that technological sophistication for law enforcement meant “the latest version of WordPerfect, or whatever it is.” But in Riley, he was armed with the facts about the mysterious new world of smartphones, mobile apps, and cloud computing. Cell phones, he wrote, “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” They carry a full history of the owner’s recent life—who the owner has emailed or texted and what was said; where the owner has been and how many times; bank records and health information; and even “apps for improving your romantic life.” If the arrest exception is stretched to cover smartphones, it might permit searches that would “expose to the government far more than the exhaustive search of a house.”

Presented by

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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