EFF Amicus Asks Supreme Court to Review Warrantless Smartphone Searches

Are police allowed to rummage through the contents of a cell phone when a person is arrested? The U.S. Supreme Court is currently deciding whether to grant review in two cases involving the thorny issue. Together with the Center for Democracy and Technology, we've filed an amicus brief with the Supreme Court asking it to grant review in Riley v. California, a case involving the warrantless search of a smartphone incident to arrest. The Fourth Amendment requires the police to get a warrant before conducting a search. But the Supreme Court has permitted police to search a person and the areas and items within the arrestee's immediate control upon arrest without a warrant. This exception to the warrant requirement has been justified for two reasons: first, protecting officer safety means searching the person to ensure they aren't carrying a weapon; and second, a warrantless search is justified by the need to ensure no evidence is lost or destroyed.  But this doctrine was developed by the Supreme Court in an age before cell phones. While courts have permitted the warrantless search of things like clothes or cigarette packs on a person under the exception, a modern smartphone is a far different thing, capable of storing immense amounts of information. As warrantless cell phone searches incident to arrest have become more widespread, state and federal courts reviewing the constitutionality of these searches have reached conflicting opinions. But as cell phones have evolved to become miniature computers, courts looking at the issue are hesitating to provide officers with wide searching authority. The two most recent court decisions on the issue, from the Florida Supreme Court in Smallwood v. State and the federal First Circuit Court of Appeals in United States v. Wurie, ruled such searches were not permitted especially because of the massive amounts of information stored on a smartphone...more