• Officers Must Obtain Warrant to Access Data on Arrestee's Mobile Phone Device
  • July 9, 2014 | Authors: Tamara Bogosian; G. Ross Trindle
  • Law Firms: Best Best & Krieger LLP - Irvine Office ; Best Best & Krieger LLP - Los Angeles Office
  • Overview: Today, the U.S. Supreme Court held that police officers may not search digital information on a mobile phone device seized from a person who has been arrested without a warrant. In Riley v. California and U.S. v. Wurie, the Court declined to extend the warrantless search of a person incident to an arrest to the search of digital data stored on arrestees’ mobile phone devices.

    Training Points: While this ruling adds the additional step of applying for a search warrant prior to searching a mobile phone device, the Court was clear that these rulings do not make mobile phone devices immune to searches. Rather, prior to conducting such a search even incident to an arrest, an officer must obtain a search warrant. The Court acknowledged that officers may examine the physical aspects of the phone for officer safety purposes. For example, to ensure a razor blade is not hidden between the phone and the case. However, this is limited to the exterior of the phone. If officers are concerned the phone may be remotely wiped, they can turn the phone off, remove its battery or leave the phone on and place it in an enclosure (known as a “Farady bag”) that isolates the phone from radio waves. Finally, if officers are truly confronted with an exigent circumstance regarding their concern the phone may be remotely wiped, they may rely on exigent circumstances to search the phone immediately. However, this is only if true exigent circumstances exist based upon specific articulable facts. As always, probable cause is essential to a claim of exigency. Exigency may include kidnapping and/or human trafficking or locating a dangerous felon who poses an immediate and severe threat to public safety. Future challenges to this ruling will likely identify factual circumstances where exigency justified a warrantless search of an arrestees mobile phone device data. Every jurisdiction should consult with their local prosecutorial agency to determine the scope of discretion for exigent circumstances.

    Officers should continue to follow their department’s policies and procedures in applying for a warrant and should specifically articulate the items on the mobile phone device they intend to search (i.e., photos, videos, text messages, e-mails, etc.). It is also recommended that systems be put into place to streamline the issuance of digital device search warrants when applicable.

    Summary Analysis: In Riley v. California, Riley was stopped for a traffic violation that led to his arrest on weapons charges. The arresting officer searched Riley incident to the arrest and located a mobile phone device in Riley’s pocket. The officer accessed and searched the phone, and found references to what he believed to be a street gang. Two hours after the arrest, while at the police station, a gang detective looked through Riley’s phone and found photographs and videos that tied him to a shooting that had occurred a few weeks earlier. After Riley was charged with the shooting, he moved to suppress the evidence the police obtained from his mobile phone device. The motion was denied and Riley was convicted.

    In U.S. v. Wurie, officers observed Wurie selling drugs. Wurie was arrested and taken to the police station. At the police station, officers seized two of Wurie’s mobile phone devices and noticed that Wurie had received numerous calls from a number tied to a contact named “my house.” An officer opened the phone and accessed its call log. From there, they obtained the telephone number tied to the contact. They traced the number to Wurie’s residence where they served a search warrant and found drugs, guns, ammunition, and cash. After Wurie was charged with drug and firearm offenses, he moved to suppress the evidence found at his house. The motion was denied and Wurie was convicted.

    Taking these two cases together, the Court analyzed a slew of cases that dealt with the reasonableness of warrantless searches incident to a lawful arrest. The Court analyzed and weighed the governmental interests of officer safety, evidence destruction and the potential for escape against the privacy interests and found that officer safety and evidence destruction are not valid bases to conduct a warrantless search of an arrestee’s mobile phone device. The Court declined to extend the rule that permits officers to conduct warrantless searches of items found on an arrestee to searches of data on mobile phone devices because the privacy interests supersede the government interests. The Court reasoned that digital data stored on a mobile phone device cannot be used as a weapon or effectuate the arrestee’s escape. Moreover, the data stored on the phone can be preserved.