-by John M. Walsh, Esquire
In the past, the search of cell phones by police was permitted incident to arrest. In June 2014, the Supreme Court ruled that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.
Officers may examine a cell phone’s physical aspects to ensure that it will not be used as a weapon, but the data on the phone can endanger no one. To the extent that a search of cell phone data might warn officers of an impending danger, e.g., that the arrestee’s confederates are headed to the scene, such a concern is better addressed through consideration of case-specific exceptions to the warrant requirement, such as exigent circumstances. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but more substantial privacy interests are at stake when digital data is involved. The Chief Justice noted that many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives. The scope of the privacy interests at stake is further complicated by the fact that the data viewed on many modern cell phones may in fact be stored on a remote server; thus, a search may extend well beyond papers and effects in the physical proximity of an arrestee.
The Court’s holding is not that the information on a cell phone is immune from search; it is that a warrant is generally required before a search. Although the search incident to arrest exception will not apply to cell phones, “the continued availability of the exigent circumstances exception may give law enforcement a justification for a warrantless search in particular cases.”
In other words, unless there is an emergency requiring police to search a cell phone they are required to get a warrant.
-John M. Walsh, Esq. is an experienced Philadelphia Criminal Defense Attorney and the Managing partner of the Law Office of John M. Walsh.