A victory for citizen’s private property interests was realized this summer, June 25, as the United States Supreme Court unanimously ruled that law enforcement cannot search an arrested person’s cell phone without first obtaining a search warrant.  While the Court recognized police interests in investigating crimes, it found that privacy rights are more important.  Police may still have the ability to search a cellphone or smartphone for further evidence of a crime, they just need to take an extra step and request a search warrant from a judge.

The cases the Court reviewed involved both an extensive smartphone search in Riley v . California where, without a warrant, police searched digital information on a cellphone seized from an individual who had been arrested. Police then used photos found on the phone to charge the individual (Riley) with another crime. The other case the Court reviewed involved a more limited search of an old flip-phone in United States v. Wurie that a federal judge already had thrown out as an illegal search.

Police can search a person under arrest as well as any physical items that are within reach to find weapons and preserve evidence.  However, there are limitations as to what is “within reach” or what evidence can be searched for after an arrest.  In writing the opinion for the Court, Chief Justice John Roberts noted that vast amounts of sensitive data on modern smartphones raise new privacy concerns that differentiate cell phones from other evidence found subsequent to arrest. The Court held that the warrantless search exception following an arrest exists for the purposes of protecting police officer’s safety as well as preserving evidence, neither of which are at issue in the search of digital data. The digital data cannot be used as a weapon to harm an arresting officer, and officers have the ability to preserve evidence while awaiting a warrant by disconnecting the phone from the network and placing the phone in a faraday bag.

These privacy and search issues will continue to be argued in the criminal courts. As technology advances, there will be new Fourth Amendment search questions that will be raised and ruled upon in lower courts across the country as well as in Tennessee.  If you have been arrested, you need an aggressive criminal defense attorney who will be well informed of new rulings as they relate to the issues of search or otherwise in your case. Donna Wagner is an experienced criminal defense attorney who will fight to protect your privacy rights.