Here is a posting written by Lisa Di Valentino about the cell phone privacy decision issued last week from the US Supreme Court
U.S. Supreme Court: Warrant needed to search cell phone of arrested individual
by Lisa Di Valentino
Earlier this month, the Canadian Supreme Court handed down its judgement in R. v. Spencer, affirming that there is a reasonable expectation of privacy in Internet browsing data. On June 25, 2014, the U.S. Supreme Court had an opportunity to address Constitutional privacy interests in digital information, this time in a mobile phone. The question in this case is whether police, without a warrant, may search digital information in a cell phone taken from someone who has been arrested.
Riley v. California is a decision addressing two separate appeals, both related to the search of mobile phones pursuant to arrest. The facts of each case are set out below:
Case 1: Riley was stopped for having expired registration tags, and eventually arrested for possession of a firearm. An officer seized a cell phone from Riley’s pocket and searched it, finding “gang related” terminology in some of the communications. At the police station, an expert further examined the phone, the contents of which led to a charge of attempted murder in connection with an earlier shooting. The trial court refused to suppress the mobile phone evidence, and Riley was convicted. The appeals court affirmed the conviction.
Case 2: Wurie was spotted by an officer making what looked like a drug sale. He was arrested and taken to the station. His flip phone was seized and an officer searched the call log. Upon finding a contact called “My house”, the officer did a reverse search of the phone number and determined Wurie’s address. A search warrant was obtained for the apartment, where officers found illegal drugs and a gun. Wurie was convicted of drugs and firearms charges. The appeals court reversed the conviction.
The Fourth Amendment to the U.S. Constitution reads as follows: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not 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 or things to be seized.”
Generally, a judicial warrant is required for a search; however, in the instance of a lawful arrest, law enforcement are entitled to search the person of the arrested individual and seize any evidence of crime. The issue in this appeal is the scope of the exception. Officers may be allowed to take the cell phone and physically search it for evidence (for example, drugs hidden inside), but the data and information in the phone are a different story.
The Court goes on to discuss three important precedents and their bearing on the case at hand: Chimel v. California (1969), United States v. Robinson (1973), and Arizona v. Gant (2009). Each of these cases dealt with a search incident to an arrest, and generally stands for the principle that a search will be justified where it is limited to the arrestee’s person and the area within his immediate control, in order to remove weapons or prevent escape or destruction of evidence.
How then, does the doctrine of search incidental to arrest apply to cell phones? The Court said that it is necessary to assess the degree to which the search intrudes on an individual’s privacy, and balance it with the degree to which the search promotes legitimate governmental interests.
In these cases the search was conducted on digital data rather than a physical object. Digital information does not pose a risk of harm to officers, nor will it aid the escape of the individual. Destruction of evidence is unlikely. Cell phones these days contain vast amounts of personal information — it is quite a different thing from looking into a cigarette packet. Justice Roberts wrote that comparing searching cigarette packets to cell phones “is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” (pg. 17)
Cell phones differ in a qualitative sense from other objects an individual might carry. There is much more storage capacity in a mobile phone; its information in aggregate reveals a lot about a person; the data may go back years; and it might be stored on a remote server, so the search would go beyond physical proximity of the arrestee. In sum, the search of a cell phone typically would expose far more about a person than all of the physical paraphernalia he or she might have on his or her person. On the other hand, the search of a cell phone does not further government interests.
After considering all of the factors, the Court determined that a warrant was necessary to search the arrestees’ mobile phones. They vacated Riley’s conviction and sent the case back for further proceeding, and affirmed the appeals court judgement in Wurie.
While the Canadian Supreme Court said in R. v. Spencer that there is a reasonable expectation of privacy in Internet browsing data, it is important to recall that Spencer had not yet been arrested when law enforcement sought his address from the Internet service provider. Generally, individuals who have been arrested have a lower expectation of privacy as regards to the items they are carrying with them at the time of arrest.
A Canadian situation more similar to Riley can be found in the 2013 Ontario Court of Appeal decision in R. v. Fearon. Fearon had been arrested in connection with a robbery; police removed his mobile phone from his pocket and performed a search on it incident to his arrest. The phone was not password protected, and the officer found incriminating photographs and a text message.
Fearon was convicted at trial; the conviction was upheld by the appeals court. The appeals court determined that the police had an objectively reasonable belief that a search of the phone would yield relevant evidence, and so Fearon’s Section 8 rights were not violated. However, the Court goes on to say, “If the cellphone had been password protected or otherwise ‘locked’ to users other than the appellant, it would not have been appropriate to take steps to open the cellphone and examine its contents without first obtaining a search warrant.” (para. 75) Unfortunately the Court does not expand on the reasons this might be so, beyond a quick comparison to a locked briefcase.
In May of this year, the Supreme Court heard the appeal of R. v. Fearon and judgement with reasons will follow. It will be interesting to read what the Supreme Court has to say, given their pro-privacy approach in Spencer. Will they agree that a cursory search of a cell phone incident to arrest is a reasonable action for law enforcement to take? Or will they decide that, despite the fact that the individual is no longer merely a suspect, he has a reasonable expectation of privacy in his digital information, and that a warrant is required to access it?
Lisa Di Valentino is a doctoral student in Library & Information Science in the Faculty of Information & Media Studies at the University of Western Ontario. She maintains a website at http://fairdealingineducation.com/ and her research is supported by the GRAND NCE.