Two recent opinions have significantly restricted the practice of warrantless collection of data stored on cell phones or by cell phone service providers. In Riley v. California the U.S. Supreme Court confirmed that a warrant is a precondition for law enforcement to perform a search of cell phone data in the context of a criminal arrest. In a separate case considering the warrantless collection of cell site location information, the Eleventh Circuit recently held in United States v. Davis that this practice violates the Fourth Amendment.

Riley v. California -

Background. The Supreme Court considered two companion cases, Riley v. California and United States v. Wurie, raising the common question of whether the police may search digital information on a cell phone seized in connection with the arrest of the phone’s owner. In the former, a police officer stopped defendant David Riley for driving with expired registration tags. The officer discovered Riley’s license had been suspended, which led to an investigatory search of the car and, ultimately, to Riley’s arrest. Riley’s smartphone, seized in the search incident to his arrest, was found to contain photographs of Riley standing in front of a car that police had previously linked to a shooting. Based on this evidence, Riley was charged with, and convicted of, assault and attempted murder. The trial court denied Riley’s motion to suppress evidence obtained from his cell phone on the basis that it had been obtained without a warrant and was not justified by exigent circumstances. The California Court of Appeal affirmed the trial court’s ruling, relying on California case law that permitted warrantless searches of cell phone data provided that the cell phone was on the arrestee’s person at the time of the arrest. The California Supreme Court declined Riley’s petition for review.

Originally published in Bloomberg BNA Criminal Reporter on July 30, 2014.