Can the police really grab your cellphone, search it and use it without a warrant if you’re arrested? Two attorneys who argued this question before the Supreme Court will join the National Constitution Center’s Jeffrey Rosen for a public event on Monday.
Edward C. DuMont, California Solicitor General, and Jeffrey L. Fisher, Stanford Law School professor, will consider two pending cases before the high court: Riley v. California, involving a Samsung smartphone, and United States v. Wurie, focused on an older-generation flip phone with limited computing ability. DuMont and Fisher were opposing counsel in Riley.
Both cases examine the power of the police, acting without a search warrant in certain circumstances, to look at information stored on a cellphone taken from a suspect at the time of an arrest.
In 2009, David Leon Riley was convicted of shooting at an occupied car, attempted murder, and assault with a semi-automatic weapon. He wasn’t arrested at the time of the shooting, but when he was later stopped for driving with expired license plate tags, police took the smartphone he had and searched its contents twice, without a warrant.
The phone’s contents led to evidence identifying Riley as an alleged gang member, and information from the phone, including images and video, was used to convict him.
Riley’s lawyers—including Fisher—had asked the Supreme Court to address a broader question of whether the Fourth Amendment allowed police without a warrant to search “the digital contents of an individual’s cellphone seized from the person at the time of arrest.”
The Court, however, will only rule on the narrow question of whether evidence taken from the smartphone could be used at Riley’s trial.
In Wurie, Boston police in 2007 saw Brima Wurie make an apparent drug transaction inside his car. They followed Wurie from the scene and arrested him.
Later, Wurie was at the police station when the officers seized two cellphones from him. One of the phones was a flip phone that was receiving calls from a number identified as Wurie’s house. Upon further examination, the officers also discovered a picture of a woman with a baby.
Police were able to trace their way back to Wurie’s home in South Boston, where they identified the woman and child from the photo. With this new information, police obtained a warrant and returned later to find “215 grams of crack cocaine, four bags of marijuana, drug paraphernalia, cash, a firearm, and ammunition.”
In prosecuting the case, state attorneys cited a Fourth Amendment exception known as a search-incident-to-arrest exception. This exception permits a warrantless search if it is made “to search … and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction” or used to search “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.”
Wurie was convicted on felony charges. His lawyers had sought to block the use of the evidence taken from his cellphone, but they failed—ultimately leading to the Supreme Court.
The cases are being closely watched by legal observers because they will present the justices with the challenge of relying on past privacy decisions or setting a new course based on the current—and future—technology used by communication devices.
In Chimel v. California (1968), police officers arrested a man at his house who was accused of burglary. Following the arrest, police conducted a search of his home, finding evidence that would eventually lead to his conviction.
The Supreme Court, however, called the search unreasonable. It also held that a search incident to arrest could not extend past areas where suspects had immediate control.
Only five years after Chimel, the Court used search incident to arrest in United States v. Robinson to convict a suspect of drug possession charges. There, the defendant was arrested by police for driving without a license when they uncovered a crumpled cigarette package in his pocket that contained vials of heroin.
The high court reasoned that because the arrest itself required probable cause, a search of the immediate area following the arrest required no further justification.
Phones have never been at the center of debate on a search incident to arrest, but other areas, such as cars, have been addressed by the Court as recently as 2009.
Similar to Robinson, the defendant in Arizona v. Gant was arrested after driving his car without a proper license. Police officers handcuffed Gant before discovering a handgun and bag of cocaine in the defendant’s vehicle.
In Gant, however, the Supreme Court—in what might well be considered an unusual majority—ruled that the police could not search the vehicle unless the suspect might gain access to it before the police obtained a warrant.
A decision in Wurie and Riley is expected by the end of June.