Cellphones Are Not Cigarette Packs, and Supreme Court Holds the Former Are Not Subject to Warrantless Search Incident to Arrest

June 27, 2014Articles White Collar Defense & Compliance Blog

This space has previously addressed the difficulties inherent in applying Fourth Amendment principles designed to accommodate searches of rooms and drawers to searches of the devices of modern technology. In April 2011, we examined whether a consent to search a dwelling could reasonably be read as a consent to rummage through a computer found in the premises. The “incident to arrest” exception to the warrant requirement was considered in a Seventh Circuit case analyzed here in April 2012, where the argument was made that searching a file cabinet was not the same as searching a more expansive, and personal, cellphone. Further, we looked in August 2013 at a First Circuit case, United States v. Wurie, in considering whether the “incident to arrest” doctrine which had permitted officers to conduct warrantless examinations of suspects’ cigarette packs and wallets really could justify the search of their cellphones.

These disparate discussions had in common considered the evident difficulty experienced by courts at all levels in applying principles of two hundred years’ vintage to emerging technologies and storage media. Finally, the Supreme Court this week spoke for the first time to that conflict, or at least to one of its subsets. In a unanimous decision in Riley v. California, No. 13-132, and its companion case, Wurie, No. 13-212, 573 U.S. ____ (June 25, 2014), the Court invalidated an “incident to arrest” search of the suspects’ cellphones. The traditional concerns which animated this warrant exception — officer safety and the risk of evidence destruction — were not readily applicable to a device which is markedly unlike the physical objects previously considered. “Cell phones … place vast quanities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in [previous “incident to arrest” cases].” Slip op., at 9-10.

There is no doubt that defendants can use the Riley decision to support suppression motions involving a variety of other electronic storage media and a number of other search circumstances. The Riley case marks a watershed in Fourth Amendment jurisprudence — what suffices as probable case for a warrant to search a file cabinet cannot any longer justify the search of a laptop possibly containing personal information found there, and circumstances which may support a consent search of a home may not allow the search of an iPad located in the home.