Wednesday, July 31, 2013

Can A Cop Search Your Cell Phone? It Depends On Who You Ask

The U.S. Supreme Court held 40 years ago that police who arrest someone have the authority to search items on “their person.” But that was before most people started carrying cell phones, let alone smartphones, which often contain as much information about a person as one might find from searching their home.

Recognizing this changing technology, some courts have held that even after police arrest someone, they must obtain a warrant to search their phone. The U.S. Court of Appeals for the First Circuit recently joined the Ohio and Florida Supreme Courts in reaching this conclusion. But with three federal appeals courts having ruled that no warrant is required, there is anything but consensus on this issue. On Monday, the First Circuit’s chief judge implored the U.S. Supreme Court to take up this question and give courts and police officers some definitive clarity.

“[T]he differing standards which the courts have developed provide confusing and often contradictory guidance to law enforcement,” Judge Sandra Lynch wrote in declining to have a full circuit panel reconsider the appeals court’s previous decision. “Only the Supreme Court can finally resolve these issues, and I hope it will.”

Prosecutors are arguing that the cell phone searched in the First Circuit case was a simple flip phone — not a smart phone, and that they only perused the call log. But the purpose of the “search incident to arrest” exception was to protect police officers and preserve destructible evidence, that cell phone data is typically neither harmful nor immediately destructible.

Cell phones, iPads and other small devices create the potential for vast expansion of the “search incident to arrest” exception to the general rule that a warrant is required for a search under the Fourth Amendment. With conviction rates of arrestees as low as 16 percent for some crimes, police have the potential to gather vast swaths of data from mere suspects never convicted of a crime, no matter how minor the offense.


The separate but related issue of whether police can track cell phone location data without a warrant is also generating disparate court rulings. On Tuesday, the U.S. Court of Appeals for the Fifth Circuit held that police could track cell site data without a warrant. Two weeks earlier, the New Jersey Supreme Court held the opposite. After the U.S. Supreme Court limited police use of GPS devices to track a car’s movements in 2012, many law enforcers increased their reliance on cell site data.

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