Yes, the Police Should Have a Warrant to Search a Phone, But Will the Supreme Court Agree?

SO000740Two different Circuit Courts, two different opinions on cell phone searches. Oftentimes when a "Circuit Split" arises, meaning two or more Circuit Courts come to opposing decisions on a legal issue, the Supreme Court steps in and tries to come up with one rule for the country as a whole. The search of a cell phone presents such an issue. It's the time of year when the Supreme Court decides petitions for writs of certiorari. When a case is in federal court, and the Circuit Court of Appeals makes a decision, the U.S. Supreme Court is the only court that can overturn that decision, and they can only do so after granting a writ of certiorari. The reason for the writ is that there is no automatic right of appeal to the U.S. Supreme Court, the Court must agree to hear the case. So the Court is only likely to hear cases touching on very important issues and issues where the Circuit Courts have come to differing decisions. There is presently a writ of certiorari on this topic before the Supreme Court in Riley v. California that the Court will likely agree to hear in its next term.

The issue of cell phone searches mostly comes up in the context of a search incident to a lawful arrest. When the police make an arrest, there is an exception to the warrant requirement that the Supreme Court first described in Chimel v. California. This exception allows the police to search the person without a warrant. The Seventh Circuit, which includes Chicago, in an opinion by Judge Posner, has held that a cell phone search incident to a lawful arrest is valid as long as the search is limited to a search of the address book and phone number for the phone. See U.S. v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012). The First Circuit, which includes Boston, has held that cell phones are the same as other closed containers, meaning if the arrestee is secured and separated from the container, then there is no exception and the police must get a warrant. U.S. v. Wurie, — F.3d –, 2013 WL 2129119 (1st Cir. May 17, 2013).

As you can see, the two circuits had two different views on a topic that's only going to grow in importance as cell phones proliferate. I tend to the First Circuit view. I understand where the Seventh Circuit is coming from if the search is limited, but, I can say from my experience in dealing with law enforcement that they are likely to overreach. Besides, how difficult is it to hold the phone and get a warrant to search it? There are ways to ensure that no one erases any data on the phone if you're concerned with data loss while police hold the phone. It strains credibility to suggest that people don't have very significant privacy interests in their cell phones. Just think of everything you have on it if you have a smart phone. You likely have personal messages, maybe financial information and other personal, private data on your phone. If luggage is important enough to require a warrant once you're separated from it, it seems like a cell phone should receive at least as much protection. It is certainly an important topic and one that is worthy of the Supreme Court's review.

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