In 2011, the California Supreme Court ruled in People v. Diaz (2011) 51 Cal.4th 84, that law enforcement could search the data in cell phones without a warrant if the search was incident to arrest and the cell phone was immediately associated with the arrested individual.  In essence, the California Supreme Court analogized the cell phone case to a case decided by the US Supreme Court (US v. Robinson (1973) 414 US 218) dealing with a pack of cigarettes.

Only two of the California justices dissented.  In the dissent, Justice Werdegar joined by Justice Moreno, argued that “electronic communication and data storage devices carried on the person — cellular phones, smartphones and handheld computers — are not sufficiently analogous” to clothing or a pack of cigarettes.

The majority of the California Supreme Court got it wrong and the US Supreme Court decided on June 25, 2014 in Riley v. California (2014) 573 US ____, that cell phones are not like clothing or a pack of cigarettes and cannot be searched without a warrant just because someone has been arrested and he or she has a cell phone.

We kind of saw the writing on the wall on this one at the oral arguments because most of the questions asked by the justices, seemed skeptical of the government’s various positions.  According to the Court;

• There is a greater privacy interest in cell phone data is not like a brief pat down search of clothing, a cigarette or other type  of physical container;
• Digital data on a cell phone is not a weapon that can harm an officer or used to escape, of course an officer can look at the physical cell phone itself without accessing data;
• No destruction of evidence issues once the physical phone is seized – even if the concern were some type of “remote wiping” issue, law enforcement has technology to combat it;
• Cell phones are different – it has immense storage capacity, can store thousands of pictures, hundreds of videos, connected to various sources of information, data can go back years, and much more than a diary.

The Court recognized that their decision will have an impact on law enforcement’s ability to expedite searches, in essence inconvenience police efficiency.

However, as Justice Roberts stated,

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.  Opposition to such searches was in fact one of the driving forces behind the Revolution itself.

(Riley, supra,)

The bottom line…the US Supreme Court says, if police want to search a cell phone, get a warrant!