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August 21, 2014
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Jim Porter: May police search cellphone for info?

The U.S. Supreme Court recently issued an Opinion with far-ranging implications addressing whether the police may search the information on a recent arrestee’s cellphone.

TRAFFIC VIOLATION

Riley (as he was called in the Opinion) was stopped for a traffic violation. Little did he know that he’d later be convicted on weapons charges and that the case of Riley v. California would become key legal precedent.

An officer searching Riley during his arrest seized a cellphone from his pants pocket. Based upon information found on his phone’s digital contents, Riley was charged for a previous shooting with gang membership enhancements.

Riley moved to exclude the evidence obtained from the cellphone. Motion denied, Riley convicted. His case made it to the U.S. Supreme Court.

SEARCH AND SEIZURE

This case is all about how long-standing search and seizure law will be applied to the tech world, specifically cellphones.

The Fourth Amendment protects against unreasonable searches and seizures, requiring search warrants for most searches.

One exception allows a warrantless search conducted as part of a lawful arrest. However, a search incident to an arrest is limited to the area within the arrestee’s immediate control where it’s necessary to prevent evidence destruction or protect the officer’s safety.

A pat-down search or search under the car seat for a weapon would be an example. Search of an arrestee’s vehicle looking for evidence of the crime is also allowed without a search warrant.

SEARCH OF CELLPHONE DATA

The Court was grappling with how search of a cellphone differs from searching the pockets of an arrestee.

“Before cellphones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cellphones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences.”

Think N.S.A.

The State of California asked the Court to allow a partial review of cellphone data limited to information relevant to the crime, but the Court declined to enter that “difficult line-drawing expedition to determine which digital files are comparable to physical records.”

GET A WARRANT

The Supreme Court (eight justices) ultimately wrote: “It is true that this decision will have some impact on the ability of law enforcement to combat crime. But the Court’s holding is not that the information on a cellphone is immune from search; it is that a warrant is generally required before a search.”

In this significant ruling, the Court wrote “the search incident to arrest exception does not apply to cellphones.” A warrant is needed. The Court left open the door to warrantless searches under “exigent circumstances.”

That we’ll leave for a follow up column if you can stay awake.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, mediation and other transactional matters. He may be reached at porter@portersimon.com or www.portersimon.com.


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Tahoe Daily Tribune Updated Sep 2, 2014 12:01PM Published Aug 21, 2014 09:04AM Copyright 2014 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.