Natty Shafer Law

Utah lawyer for criminal and immigration cases


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Court Will Soon Clarify Cell Phone Searches

Tomorrow, the Supreme Court is scheduled to hear oral arguments in two cases that will decide the extent law enforcement officers can search a person’s cell phone after an arrest. I have written about this issue before, and about how much sensitive data most people keep on their cell phones. Once the Court issues its ruling, we will know where whether our cell phones are really private.

People put embarrassing and deeply personal information on their cell phones, but most data files do not relate to criminal acts. The couple depicted in the commercial below probably would not want anyone looking through their cell phones. If the Court allows it, police departments will routinely copy all the information from seized cell phones and upload it to a database for permanent storage. Government officials could peruse the data whenever it suits them.

The capabilities of cell phones allow for nearly unlimited personal information to be stored. Some smartphones now hold 64 gigabytes of data. Right now, phones have enough space to store thousands of personal emails, pictures, videos, and text messages simultaneously, and data storage capacity increases each successive year.

If the Court rules that an arrest does not necessarily justify a search of a suspect’s phone, the police will still have the option to request a warrant. With electronic warrants, it is possible to issue a search warrant within a couple of minutes. The importance of this is that you have a neutral judge deciding whether there is probable cause to search the phone. Otherwise, we will have police officers fishing for evidence for each person they arrest, and the private lives of everyone will be a little less private.


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Warrant Exceptions: Search Incident to Arrest

Most laypeople are vaguely aware that warrants allow police officers to search private belongings or property, and lack of a warrant can make a search illegal and render any evidence obtained inadmissible in court. However, there are so many exceptions to the warrant requirement that an officer can often find an exception. It sometimes seems as though the warrant requirement is no requirement at all. Today, I’m writing about one of those exceptions: the search incident to arrest.

When an officer arrests a person, the officer can search a person’s body to check for weapons or contraband. The rationale has been that officers need to protect themselves and they need to preserve evidence. The exception has a fairly long history. As Professor Orin Kerr showed, it goes back to at least 1914 and probably earlier. It is pretty well settled that officers can search everyone they arrest and the area within arm’s reach of the arrestee.

The problem comes with changes in technology and how intrusive such searches can be. We are in limbo as to whether or not police officers can search a person’s cell phone after an arrest. A police officer is allowed to remove the cell phone from someone they arrest, but are they allowed to open the cell phone and search for possibly incriminating evidence? A cell phone makes a poor weapon. Once an officer has removed it from a person’s possession, there is no threat of it harming the officer or of the arrestee deleting evidence. Unfortunately, the Supreme Court has not ruled on the issue of search incident to arrest recently, and lower courts are left analogizing new technologies to dissimilar objects from past rulings. Different courts are split on the issue. Neither the Utah Supreme Court nor the Tenth Circuit Court of Appeals have yet weighed in on the issue.

In United States v. Robinson, a 1973 case, the Court said that an officer could search a man’s pocket, which contained a crumpled up cigarette packet with heroin inside. As a result, some courts such as the California Supreme Court, have held that a cell phone on a person’s body is subject to search. A police officer, after a lawful arrest, can examine all of a phone’s contents without a search warrant.

It is not just the guilty who should be worried about this type of intrusion, either. Innocent people do get arrested, and there is a lot of personal information on a cell phone. I don’t know about you, but if an officer were so inclined, he could find a lot of embarrassing but not illegal information on my phone. I would not want a stranger poking around my text messages, call logs, appointment calendar, and pictures. Some people have even more sensitive information on their phone such as sensitive emails or trade secrets on their business phone.

Fortunately, there are other courts that have ruled differently, such as the Florida Supreme Court, and recognized that the rationale for this warrant exception does not apply to cell phones. Once an officer has taken a phone, the need to protect evidence or the officer’s safety is gone.

Until there is a ruling in Utah, it wouldn’t hurt to password protect your cell phone.