Cell Phone Searches After Arrest

If police officers arrest you, they can search you, including your pockets, and the area within your immediate control. But what happens if they come across your iPhone or Android? Are they free to dive into your phone and all its data, or do they first need a warrant?

Fourth Amendment and Cell Phone Searches

The U.S. Supreme Court sets the basic rules on search and seizure through interpretation of the Fourth Amendment, which protects against unreasonable government intrusion. But because it takes so long for a case to get all the way to the Supreme Court, search-and-seizure law relating to new technology often remains uncertain for many years.

Uncertainty about cell phone searches prevailed until June 2014, when the U.S. Supreme Court held that police officers generally need warrants to search the cell phones of arrestees. (Riley v. California, 573 U.S. 373 (2014).)

Cell Phones and Privacy Rights in Digital Data

After an arrest, officers are allowed to search people and any containers on or immediately around them. But lower courts across the country couldn't agree as to whether this kind of search reasonably extended to cell phones. Some said that mobile phone searches required warrants, while others said they didn't.

Ultimately, the Supreme Court found that a cell phone is entirely unlike a typical container—for instance, a cigarette pack. Sure, both might contain evidence, but that evidence is physical in one instance and digital in the other. And the digital evidence that cell phones hold is both vast and tremendously personal. Today's smartphones hold anything from bank and medical records to intimate text messages to data that tracks the owner's location.

As the Court explained, data revealed by a cell phone may not actually be stored on it. With cloud computing, the information might actually live on a remote server. The fact that cell phones may not even "contain" the information they display is another way in which the cigarette-pack analogy falls short.

Plus, with today's technology, it may take officers as little as 15 minutes to get a warrant that authorizes a search.

Warrant Typically Needed: Cell Phones Are Like Homes

The Supreme Court's 2014 decision established that cell phones are most like homes, which police officers need warrants to search. If anything, Chief Justice Roberts wrote, a contemporary cell phone—with its immense storage capacity—contains more private, sensitive information than a house. So, officers who plan to search cell phones will usually have to get court approval before having at it.

What Exceptions Allow Police to Search a Cell Phone Without a Warrant?

Prosecutors expressed a series of objections to the requirement that officers obtain warrants before searching arrestees' cell phones. They mentioned "remote wiping," by which a third party could delete a phone's data after police officers take it, or by which the data might erase if the phone enters or exits a particular geographic area. They also discussed data encryption, which makes information nearly impossible to get to without a password. They even invoked extreme scenarios, such as where a phone has the location of an about-to-explode bomb or a missing child.

Phone as a weapon. To the extent that a cell phone might be usable as a weapon, the Supreme Court said that officers can search it without a warrant—for example, they can retrieve a razor blade hidden between the phone and its case.

Preventive measures. Officers can probably take "preventive measures" to avoid the loss of a phone's data. Without delving into it, they could turn off the phone, place it in a bag that protects against radio waves, or disable its automatic encryption lock, for example.

Emergency. Officers can dig into the phone when there's an emergency.,The "exigent circumstances" doctrine allows officers to act without warrants when the circumstances are severe. For example, if the officers have reason to believe that they can do nothing to stop the loss of a phone's data and must search it now or never, they likely can do so. They certainly can go into the phone if there's a basis to suspect that it can help them avert a disaster involving a ticking bomb or missing child.

Compelled Decryption: Can Police Force You to Unlock Your Phone?

A separate but similarly critical issue is whether officers may force suspects to unlock their cell phones. We know that, because of the Fourth Amendment, officers typically need a warrant to search someone's cell phone. But what if they've now got the phone yet can't get into it without the owner's cooperation?

This issue, which lawyers and courts sometimes call "compelled decryption," raises the legal doctrine of self-incrimination. The Fifth Amendment to the U.S. Constitution says that that no one "shall be compelled in any criminal case to be a witness against himself … ." States' own constitutions often have similarly worded protections for people accused of or being investigated for a crime.

The core issue that compelled decryption presents is basically this: Does having to provide a passcode or biometric feature (like a fingerprint or facial scan) to unlock an electronic device amount to being compelled to "testify" against oneself? Does compelled decryption force suspects to, as some courts have put it, reveal the "contents of the mind," as by responding to a question? Or is the act of unlocking a phone like providing something "nontestimonial," such as a mug shot, fingerprint, or DNA sample after an arrest?

The courts throughout the country that have considered this issue have come to their own conclusions. Some have ruled that officers can indeed force a suspect—as through a court order—to unlock a phone that they have lawfully seized. Others have reached the opposite conclusion. Some have even suggested that the manner by which the phone is to be unlocked—for example, passcode versus fingerprint—is a critical factor to consider. Another issue courts have focused on is whether unlocking a phone is "testimonial" in that it proves that the suspect owns or has access to the device.

Whether the government can demand that a suspect unlock a properly seized cell phone will depend significantly on the jurisdiction that the case is in, at least until the U.S. Supreme Court takes up the question. If the Supreme Court rules that all compelled decryption violates the Fifth Amendment, that will be the end of the matter. But even if the Court decides that forced cell phone unlocking doesn't violate the Fifth, some state courts might decide that their constitutions ban the practice.