Illegal Police Searches of Cell Phones and the Privacy of Your Data

In our digital age, new criminal fact patterns arise every day. Our nation’s federal and state appellate courts confront daily the realities of modern day smart phone technology in the context of warrantless searches and seizures of personal information. The case of US v. Wurie, recently decided by the First Circuit Court of Appeals (which hears cases in Maine, Massachusetts, New Hampshire, and Vermont) is just such a matter.  This court rejected government warrantless searches of cell phones.Here, the police officers were conducting a drug investigation traffic stop of Mr. Wurie’s car in a high crime areafter observing a drug transaction. Wurie’s vehicle was stopped, he was detained, and taken to the police station for processing. While in custody, the police observed in plain view on Wurie’s cell phone incoming calls identified as “my house”. The officers picked up the phone, touched the screen once and observed numerous missed calls from “my house”. The officers touched the screen again and observed a photograph/ screen wallpaper shot of a wom and a baby. The officers pressed one more button, gaining access to Wurie’s call log and retrieved a phone number associated with the incoming phone call “my house”. Thereafter, the officers used that phone number and the online white pages reverse phone directory to learn the address associated with that phone number.Upon further questioning Wurie, who was now mirandized, identified a separate home address. Thinking subjectively that Wurie was a drug dealer, the police took Wurie’s house keys, proceeded to the “my house” location, and observed the same women and child in the picture they observed on his phone. The officers then secured the residence and, based upon additional factual allegations, secured a warrant to search the house, finding 215 grams of crack cocaine.Wurie filed a motion to suppress, alleging that the officers’ touching and reading his cell phone information was a warrantless search outside the scope of the Fourth Amendment. The District Court denied the motion, finding that the information gleaned from the cell phone was a legal Chimal search-incident-to-arrest. The trial court concluded that simply looking at the identifying cell phone number, or looking through a call log, photographs, or text messages was justified and such was freely searched incident to a lawful arrest, necessary to preserve proper evidence on the cell phone, or, in the context of a warrantless search, justified by a need to protect the arresting officers or preserve destructible evidence. This was in contrast to other courts which have concluded that warrantless searches of cell phones are illegal in accordance with United States v Chadwick as an item in the possession of a detained individual cannot be searched once it comes to the exclusive control of the police absent exigent circumstances.The Court went to great lengths to draft a categorical decision. The government argued that Wurie’s cell phone was an item immediately associated with the defendant’s person because he was carrying it on him at the time of his arrest. As such, iphones, ipads, or other smart phones, the government argued, should be allowed to be searched at the time of arrest because the Fourth Amendment only places a reasonableness requirement on such searches.  The court equated this cell phone search to those searches undertaken following arrest that are in inherently unreasonable because they can never be justified by either protecting officers or preserving evidence. As well, the court emphatically disagreed with the Government’s argument that a cell phone is like any other item carried on a person (a wallet) that the Supreme Court has allowed to be thoroughly searched incident to lawful arrest.The Court rejected this argument for one primary reason: 85% of Americans who own cell phones use the devices to do much more than make phone calls. These smart phones have become depositories for all forms and depth of personal, private information. Significantly, the government did not acknowledge, but the First Circuit concluded, that a warrantless search of luggage is not similar to that of a warrantless search of personal computers and iPhones. This because of the nature and extent of the information contained on the smart devices as compared to that in a piece of luggage.As well, the typical basis to search luggage is to insure no weapons or contraband is present. Short of touching the smart device to confirm it is not a gun, you see what is present (no threat to the police). The information contained therein is no threat to the officers safety, obviously private, not contraband, and not destructible if preserved and for which a warrant may be secured.Because the prime justifications of warrantless searches is to preserve destructible evidence or protect officer safety, once a smart phone is in the exclusive possession of the police, having eliminated these justifications of a warrantless search, there is no legal basis to conduct a warrantless search of an accussed’s private smart phone without a warrant.The court also rejected various aspects of the government’s argument that a warrantless search of a cell/smart phone and all information contained therein without a warrant should be legal based upon the individual facts of each case. The government argued it should be a case-by-case basis whether or not a cell phone maybe searched incident to a lawful arrest without a warrant.  The First Circuit rejected this argument, believing that all “warrantless cell phone data searches are categorically unlawful under the search incident to arrest exception because the government failed to demonstrate that such search preserved officer safety or prevented the destruction of evidence.” The court concluded that “a series of opinions allowing some cell phone data searches but not others, based upon the nature and reasonableness of the intrusion, would create subjective and highly fact specific set of rules that the Supreme Court has warned against and would be extremely difficult for officers in the field.””Today, many Americans store their most personal “papers” and “effects,” U.S. Const. amend. IV, in electronic format on a cell phone, carried on the person. Allowing the police to search that data without a warrant any time they conduct a lawful arrest would, in our view, create “a serious and recurring threat to the privacy of countless individuals.” “At bottom, we must assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”