Supreme Court requires police to obtain warrants before searching cell phones

Bradleigh Chance | Reporter's Privilege | News | June 25, 2014

The Supreme Court handed down a unanimous decision in favor of digital privacy Wednesday that says police generally need a search warrant to examine an arrested person’s cell phone.

Chief Justice John Roberts wrote a sweeping opinion, stating that digital devices contain collections of potentially sensitive information. The Court rejected arguments that searching a cellphone is akin to examining anything else officers might find on someone they arrest.

“Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Roberts wrote.

The opinion still allows police to search cell phones without warrants under “exigent circumstances.” This includes “ticking-bomb scenarios” or instances when there’s reason to believe evidence is going to be destroyed.

The Court acknowledged that its decision could make it more difficult for the police to collect valuable evidence but said “privacy comes at a cost.”

News organizations recognized the need to protect digital privacy when Riley v. California reached the highest court. In March 2014, the Reporters Committee for Freedom of the Press and 13 other media organizations filed a brief in support of Riley.

The brief, written by lawyers at Davis Wright Tremaine, asked decision makers to acknowledge the role smart phones play in modern society as well as recognize that journalists are oftentimes arrested on generalized charges of “disorderly conduct” or “disturbing the peace.” The charges are often dismissed without further action, but such circumstances could be used as a predicate to search or seize journalists’ reporting notes and materials.

“A typical journalist’s phone contains a wealth of private data,” the brief said. “At any time a journalist’s phone may include drafts of stories, interviews, corresponding photos or video, information about sources, and other confidential information necessary for reporting.”

Bob Corn-Revere, a media lawyer with Davis Wright Tremaine, says that although this wasn’t specifically a case about journalists, this decision has huge implications for reporters.

“It’s hard to overestimate the importance of this decision,” Corn-Revere said. “It really extends the protection of the Fourth Amendment to the digital age.”

If the Court had decided differently, the justices could have undermined the time and energy the journalism industry has invested in protecting reporters’ ability to keep information confidential, but they chose to uphold digital privacy, Corn-Revere said.

“No one wants to be searched by authorities, but journalists are actually in the business of gathering information,” Corn-Revere said. “Unlike the average citizen, journalists carry information on their sources, notes for their stories and confidential information. If the police were to search through their cell phones, all of that would be at risk.”

“The search is more likely to be disruptive to the journalistic enterprise than it would be for the work of other people,” he added.

All the justices except for Justice Samuel Alito joined Roberts’s majority opinion. While Alito approved of the court’s majority ruling, he said legislatures should have more flexibility when deciding which “exigent circumstances” constitute a warrant.