Supreme Court Issues Bold Decision on Cell Phone Privacy

Written by Ian Millhiser

As of yesterday, America’s Fourth Amendment law was an antique. It was the legal equivalent of trying to solve complicated differential equations with an abacus. It took little account of how much data government can gather or store with modern day computers, and even less account of technological advances such as the smart phone.

Today, there are still many questions courts must consider about how our understanding of privacy should evolve to meet the challenges of an era where millions of people carry computers in their pockets that are more powerful than anything that existed 50 years ago. Yet, with its decision in Riley v. United States, the justices took an important step towards lifting our Constitution out of what President Franklin Delano Roosevelt used to call the “horse-and-buggy age.” As of today, in nearly all circumstances, the police must obtain a warrant before they can search through your cell phone.

Although the Fourth Amendment generally provides that a person’s possessions may not be searched unless a judicially issued warrant authorizes the search, the Court has long recognized an exception to this rule for what is known as searches incident to an arrest. When a suspect is taken into police custody, that suspect may carry evidence of a crime that they will quickly try to destroy if it remains in their possession — or, worse, they may carry a weapon that could endanger the officer’s safety. Thus, police are allowed to search a suspect when they are placed under arrest, and evidence uncovered during this search can typically be used against the suspect even if the police make this search without first obtaining a warrant.

This general rule allowing searches incident to an arrest dates back about a century, long before the era of computers and the iPhone. So the justices who created and fleshed out this rule had no concept of what it would mean when many people carry a small device in their pocket that can access years worth of their emails and text messages, that can reveal a suspects’ finances and romantic partners, and that may contain extensive photo and video evidence of how they lead their lives. Riley teed up this question for the modern-day Supreme Court: when police arrest someone carrying a cell phone, does that arrest give law enforcement license to cull through the device and access whatever information they choose?

The answer, according to a nearly unanimous opinion by Chief Justice John Roberts, is no. “Cell phones,” Roberts explained, “place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search” authorized by previous cases.

As Roberts lays out, few of the traditional justifications for a search incident to arrest authorize a full search of a suspect’s cell phone. The data stored on a phone “cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.” If the phone conceals a weapon, officers can search the physical phone itself without actually accessing its electronic contents. And, if police fear that a suspect may delete incriminating evidence on the phone, in most cases they can alleviate this fear by taking the phone from the suspect and waiting until they obtain a warrant to search it. If they fear that any data on the phone may be remotely wiped, they can store the phone in a place where cell phone signals cannot reach it.

These reasons, combined with the distinct character of cell phones as compared to the kind of objects people used to carry on their person when the Court’s Fourth Amendment doctrines developed, justify requiring police to obtain a warrant before they may search a cell phone. As Roberts lays out, “[p]rior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception.”

It should be noted that Riley does not rule out the possibility that, in extraordinary cases, police may be justified in searching a cell phone without a warrant. Thus, for example, in the rare case where a suspect is “texting an accomplice who, it is feared, is preparing to detonate a bomb,” or when a suspect is a “child abductor who may have information about the child’s location in his cell phone,” a warrantless search would be justified. Nevertheless, in the vast majority of cases, the Constitution now requires police to get a warrant before they can search a cell phone.

America’s privacy law, in other words, took a significant step into the modern era with Riley. It remains to be seen, however, how the Court will answer similar questions about whether new technologies require a rethinking of longstanding privacy doctrines — such as when the National Security Agency builds a database of millions of phone calls made over many years.

This post originally appeared on ThinkProgress

Photo Credit: Highways Agency via Flickr


Jennifer H.
Jennifer H3 years ago

Yep. They can still seize the phone so this is not that big of a win. At least I don't see it as one.

Charmaine C.
Charmaine C3 years ago

Did anyone tell the NSA??

Nicole W.
Nicole W3 years ago

thank you for posting

Maria Teresa Schollhorn

Thank you.

Janet B.
Janet B3 years ago


Kamia T.
Kamia T3 years ago

Interesting decision, but as Matt M. pointed out, it doesn't protect one as much as you would think. You can still have your cell phone taken away without a warrant and just held until one is obtained. I tell all my children and friends that a cellphone is nothing but a glorified radio - so if you don't want the whole world to see/hear what's on it, don't store it there.

Matt Mastro
Matt Mastro3 years ago

Did everyone miss this part?

"if police fear that a suspect may delete incriminating evidence on the phone, in most cases they can alleviate this fear by taking the phone from the suspect and waiting until they obtain a warrant to search it. If they fear that any data on the phone may be remotely wiped, they can store the phone in a place where cell phone signals cannot reach it."

That means they can still seize your phone without a warrant..

Debra L. Watson
Debra L Watson3 years ago

This is something the Repuckens have cooked up to keep people misinformed about them.They don't like that we can access their data anywhere, anytime. Fact checking is another thing they hate, since they lie all the time!!

Darryll Green
Darryll Green3 years ago

this guy must not have read the 4th Amendment -Under the Fourth Amendment, search and seizure (including arrest) should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer who has sworn by it. Fourth Amendment case law deals with three central questions: what government activities constitute "search" and "seizure"; what constitutes probable cause for these actions; and how violations of Fourth Amendment rights should be addressed. Early court decisions limited the amendment's scope to a law enforcement officer's physical intrusion onto private property, but with Katz v. United States (1967), the Supreme Court held that its protections, such as the warrant requirement, extend to the privacy of individuals as well as physical locations. Law enforcement officers need a warrant for most search and seizure activities, but the Court has defined a series of exceptions for consent searches, motor vehicle searches, evidence in plain view, exigent circumstances, border searches, and other situations.

Patti Ruocco
Patti Ruocco3 years ago

Yah!! The government finally protecting our constitutional rights!! I wonder how many cases will need to be reviewed now....