Being attorneys who have lived through a cocktail party or two, we often get questions about what an individual’s rights are in certain situations. Frequently we have been asked what the police may search if you are arrested. This is a weekly blog, not a legal treatise, so we won’t go through the entire analysis but just talk about the recent U.S. Supreme Court decision in Riley v. California. Riley provided some guidelines for what the police may do with your cell phone if you are arrested. Because a smartphone can hold an immense amount of personal information and almost everyone carries some type of cell phone, the Supreme Court acknowledged that a cell phone is not like a wallet, address book, or purse, therefore privacy interests in a cell phone are different. So how does the Riley decision affect you?
I have been arrested. Can the police search my cell phone? In a typical arrest, the police may search the arrestee’s person by performing a pat-down. This is usually done to search for drugs, weapons, or other pieces of evidence a person may be carrying. The police can also seize or take the arrestee’s cell phone and hold on to it. However, because of the Supreme Court’s decision in Riley, the police must obtain a search warrant before accessing the information stored on the cell phone.
What if the police ask if they can search my cell phone without a warrant? Do I have to consent? No. You do not have to give consent for the police to search your cell phone if they ask. Until the police obtain a warrant, they cannot search your phone unless you give them permission. If you give them permission they don’t need a warrant.
What if I don’t have a security or pass code on my phone? Can the police then search it without a warrant if I have been arrested? The Supreme Court’s decision in Riley has made it clear that it doesn’t matter whether or not you have a security or pass code on your cell phone. The police may not search it after an arrest without obtaining a search warrant, unless you give consent.
Are there exceptions to this rule? As with all legal rules, there are exceptions and the police may access the information stored on the cell phone at the time of the arrest without a warrant in certain situations. The police may access the information if the police believe that the information on the phone is in danger of being destroyed by someone acting remotely. The police may also access the information if there is a person in immediate danger and the police need the information on the phone to prevent harm to that person. However, the police will have to prove at a later court hearing that their actions were necessary. As always, if you give consent for the police to search your cell phone, then they do not need a warrant and the police will not have to justify their actions at a court hearing.
But can’t a phone be remotely wiped pretty easily? Couldn’t the police just use this as an excuse for searching an arrestee’s cell phone without a warrant? The Supreme Court recognized that this could be an issue. The Riley decision requires that the police show individualized circumstances and facts to establish probable cause that evidence was going to be destroyed before they can use one of the exceptions to the rule. The police can also take steps to block remote deletion by storing the cell phone in a bag that blocks wireless signals and/or by removing the battery or SIM card. These requirements are in place so that the police cannot bypass the warrant requirement.
If the police get a warrant for my cell phone, what can they search? If the police obtain a warrant for your cell phone, they can search almost anything on your phone, but are constrained by the limits of the warrant. If the warrant doesn’t give permission to search a phone book, then the police cannot legally look in there.
What if I take steps to secure my phone with a pass or security code and encrypt personal information? The police can ask you for your security codes and decryption keys. If you provide this information to them willingly, then you will have given consent to access the information and this information could be admissible in court.
What if I don’t want to give the police my security or pass code or my decryption code? Don’t I have the right to not incriminate myself under the 5th Amendment? The Supreme Court did not address this question in the Riley decision. This is the new frontier of individual rights and it is still unknown how the Court’s decision in Riley will affect an individual’s 5th Amendment rights, so stay tuned.
Does this decision affect what police may do with my cell phone if they search my home with a warrant? The Riley decision applies only to searches of a cell phone found on a person after an arrest. Cell phones that are seized at a person’s residence or office as part of a search warrant can be searched immediately (there will likely be a case giving more information about this situation soon).
If you are ever in a situation where you are unsure of what your rights are, give our office a call and one of our attorneys can explain your rights.