BB&K Police Bulletin: Officers Must Obtain Warrant to Access Data on Arrestee's Mobile Phone Device

by Best Best & Krieger LLP
Contact

Officers May Examine a Mobile Phone’s Physical Aspects To Ensure It Will Not Be Used As a Weapon

Overview: Today, the U.S. Supreme Court held that police officers may not search digital information on a mobile phone device seized from a person who has been arrested without a warrant. In Riley v. California and U.S. v. Wurie, the Court declined to extend the warrantless search of a person incident to an arrest to the search of digital data stored on arrestees’ mobile phone devices.

Training Points: While this ruling adds the additional step of applying for a search warrant prior to searching a mobile phone device, the Court was clear that these rulings do not make mobile phone devices immune to searches. Rather, prior to conducting such a search even incident to an arrest, an officer must obtain a search warrant. The Court acknowledged that officers may examine the physical aspects of the phone for officer safety purposes. For example, to ensure a razor blade is not hidden between the phone and the case. However, this is limited to the exterior of the phone. If officers are concerned the phone may be remotely wiped, they can turn the phone off, remove its battery or leave the phone on and place it in an enclosure (known as a “Farady bag”) that isolates the phone from radio waves. Finally, if officers are truly confronted with an exigent circumstance regarding their concern the phone may be remotely wiped, they may rely on exigent circumstances to search the phone immediately. However, this is only if true exigent circumstances exist based upon specific articulable facts. As always, probable cause is essential to a claim of exigency. Exigency may include kidnapping and/or human trafficking or locating a dangerous felon who poses an immediate and severe threat to public safety. Future challenges to this ruling will likely identify factual circumstances where exigency justified a warrantless search of an arrestees mobile phone device data. Every jurisdiction should consult with their local prosecutorial agency to determine the scope of discretion for exigent circumstances.

Officers should continue to follow their department’s policies and procedures in applying for a warrant and should specifically articulate the items on the mobile phone device they intend to search (i.e., photos, videos, text messages, e-mails, etc.). It is also recommended that systems be put into place to streamline the issuance of digital device search warrants when applicable. 

Summary Analysis: In Riley v. California, Riley was stopped for a traffic violation that led to his arrest on weapons charges. The arresting officer searched Riley incident to the arrest and located a mobile phone device in Riley’s pocket. The officer accessed and searched the phone, and found references to what he believed to be a street gang. Two hours after the arrest, while at the police station, a gang detective looked through Riley’s phone and found photographs and videos that tied him to a shooting that had occurred a few weeks earlier. After Riley was charged with the shooting, he moved to suppress the evidence the police obtained from his mobile phone device. The motion was denied and Riley was convicted.

In U.S. v. Wurie, officers observed Wurie selling drugs. Wurie was arrested and taken to the police station. At the police station, officers seized two of Wurie’s mobile phone devices and noticed that Wurie had received numerous calls from a number tied to a contact named “my house.” An officer opened the phone and accessed its call log. From there, they obtained the telephone number tied to the contact. They traced the number to Wurie’s residence where they served a search warrant and found drugs, guns, ammunition, and cash. After Wurie was charged with drug and firearm offenses, he moved to suppress the evidence found at his house. The motion was denied and Wurie was convicted.

Taking these two cases together, the Court analyzed a slew of cases that dealt with the reasonableness of warrantless searches incident to a lawful arrest. The Court analyzed and weighed the governmental interests of officer safety, evidence destruction and the potential for escape against the privacy interests and found that officer safety and evidence destruction are not valid bases to conduct a warrantless search of an arrestee’s mobile phone device. The Court declined to extend the rule that permits officers to conduct warrantless searches of items found on an arrestee to searches of data on mobile phone devices because the privacy interests supersede the government interests. The Court reasoned that digital data stored on a mobile phone device cannot be used as a weapon or effectuate the arrestee’s escape. Moreover, the data stored on the phone can be preserved.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Best Best & Krieger LLP | Attorney Advertising

Written by:

Best Best & Krieger LLP
Contact
more
less

Best Best & Krieger LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.