Supreme Court: Warrant needed for phone search

Published 12:00 am Friday, June 27, 2014

The debate over whether or not police should be allowed to search the cell phones of people they arrest without first obtaining a warrant came to a close Wednesday when the United States Supreme Court ruled in favor of privacy.

In the unanimous decision, the Supreme Court ruled police must indeed obtain warrants before searching the digital content of phones taken from suspects placed under arrest. The decision comes after the court heard two cases in which a suspect’s phone was searched, and delivered one ruling for both. Chief Justice John G. Roberts Jr. said the ruling is significant because of the sheer number of cell phones in use today.

“These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,” Roberts wrote.

In response to detractors who propose the time needed to obtain a warrant would allow suspects the opportunity to erase, or “wipe” content from the devices, Roberts said law enforcement has the “means to address the threat.”

“Cell phone data would be vulnerable to remote wiping from the time an individual anticipates arrest to the time any eventual search of the phone is completed, which might be at the station house hours later,” Roberts wrote. “Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves.”

In May, during an interview with The Star-News, Covington County District Attorney Walt Merrell gave his take on cell phone searches – a point of view validated Wednesday by the Supreme Court.

“Phones are something that we store all of our most intimate information in now,” Merrell said. “And it’s important that we hold true to privacy laws.”

Even a month prior to the Supreme Court’s ruling, Merrell said, in Covington County, any information on a phone dealing with a criminal enterprise could only be used after a warrant was issued.

“You know, if an officer pulls someone over, and they are so drunk they can’t tell him who they are, (a cell phone) might be a means to find out a person’s identity,” Merrell said. “But, if officers come across something else, they have to go back and get a warrant.”

Roberts too commented on the amount of personal information stored on cell phones.

“The storage capacity of cell phones has several interrelated consequences for privacy,” Roberts wrote. “First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video— that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible.”

While the court’s ruling won’t change the habits of local law enforcement agents, who Merrell said in May were already obtaining warrants before searching phones, Roberts admitted those who say the law will have negative effects are right to an extent.

“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime,” Roberts wrote. “Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.”

A prime example of the use of cell phones in facilitating a crime came last Thursday when former Andalusia chamber director Ashley Eiland received a jail sentence after she was found with obscene images of a minor on her cell phone and computer. In Eiland’s case, probable cause resulted in the issuing of warrants for the seizure of those devices.

“Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest,” Roberts wrote.