Barton Blogs

Supreme Court catches up to the 21st Century’s Notion of Privacy

On June 25, 2014, the Supreme Court unanimously ruled that the police cannot search the cell phone of a person they arrest without first obtaining a warrant. The decision recognizes that the old rules with regard to police searches incident to an arrest simply do not work well in the digital age. Instead, the Court simply stated that “our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.” Privacy notions, the court held, outweigh perceived threats to safety of the arresting officer or potential for loss of evidence because, as Chief Justice Roberts wrote for the Court, a cell phone contains “a digital record of nearly every aspect of (our) lives.”  This is one of very few decisions in which the Supreme Court recognized an increased privacy interest as a result of technological innovation.

In the case, the Government argued that a cell phone could legally be searched incident to an arrest to prevent the destruction of evidence by the use of remote wiping or encryption. The Court, however, dismissed the Government’s argument, citing the fact that there was little evidence to suggest that either problem was prevalent or could not be avoided by a process that could be completed without searching the contents of a cell phone.

The Court’s decision recognized that the vast amount of information available on a cell phone is quite different than the amount of information one could physically carry. Indeed, “the sum of an individual’s private life can be reconstructed through a thousand photographs [saved on a cell phone] labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.” Therefore, the Court opined that “. . . while. . .  [existing] categorical rules [may] strike the appropriate balance in the context of physical objects, . . . [the] rationales [from previous cases permitting warrantless searches incident to an arrest] do not have much force with respect to digital content on cell phones.”

Importantly, despite the privacy implications, the decision did not completely prevent the police from searching a cell phone without a warrant in that the decision specifically envisions “exigent circumstances” in which a search without a warrant may be constitutionally justified.  Those circumstances, the Court stated, would be evaluated on a case-by-case basis.

While the Court’s almost-blanket ban on warrantless searches of cell phones incident to an arrest struck a new, appropriate balance between the needs of law enforcement and personal privacy, the law on exigent circumstances pertaining to searches of cell phones will evolve. As it does, a confluence of technical expertise and litigation art in educating courts on whether, how, and when exigent circumstances arise will be required to ensure the privacy rights identified by the Court are respected.  For further information, please contact Kenneth N. Rashbaum and Jason M. Tenenbaum.