The US Supreme Court recently took the privacy of a person’s cell phone one step further: requiring a warrant before law enforcement can obtain any information from a cell phone.

Two cases were before the Court. The first involved a search of a flip phone found on a man arrested on suspicion of selling cocaine. The flip phone was receiving calls during the arrest from a number that came up as “my house” on the screen. Officers used the number associated with “my house” to obtain a search warrant of the property associated with that phone number. There, they found drugs and a weapon.

In the other, case police stopped a man with an expired auto registration. The officers learned that the driver’s license was also suspended and impounded his car. Police found guns while searching the impounded car. The driver’s smart phone was then searched and officers found a photo of the driver next to a car linked with a shooting as well as information that he may have been involved with gang activity.

As a safety measure, officers able to justify a search incident to arrest, looking for items that may pose a physical threat to an officer’s safety at an arrest such as a needle or a razor blade in a pocket. Digital information contained within a phone, however, is not a safety threat to the officers. There is also limited threat that the information on the phone would be destroyed once the phone is in the possession of the officer and not in the possession of the defendant.

At issue before the Supreme Court in these two cell phone cases described above was the question of whether the searches of these phones were legal as incident to the arrest of the defendant carrying the phone or whether a search warrant was necessary to obtain the information stored in the phones.

Kenneth M. Poole, Jr.

The standard for pat-down searches incident to arrest is US v Robinson, which established that a search incident to a lawful arrest does not require any additional justification (i.e. a warrant). While the government’s position was that a search of cell phone data was the same as a search of other objects found incident to an arrest, Chief Justice John Roberts stated, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”

The US Supreme Court has now stated that the physical objects that may be discovered during a search incident to arrest (the phone itself) are far different from the digital content within the phone and therefore law enforcement must obtain a warrant before that digital information may be obtained.

While in the future there may be laws enacted as to the types of information on a cell phone that can be made readily available to law enforcement incident to arrest, based on this holding by the Supreme Court, without a warrant, the information in a person’s cell phone will remain private.

Kenneth M. Poole, Jr.