Video: Cell Phone Searches and the Law

Near the end of its 2013-14 term, on June 25, 2014, the Supreme Court decided a major case (Riley v. California) involving police search of cell phones. Recently, Professor Paul Marcus sat down with Professor Adam Gershowitz to talk about the impact of the decision and unanswered questions arising from it.

View the full video below. Scroll down to read excerpts.

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Excerpt 1: What was the prevailing law before the Supreme Court’s decision?

Professor Gershowitz: The law was really broad. There was a fairly broad exception which said that when police conduct a lawful arrest of a person, they could search pretty much anything that was on the person--in fact anything you could conceivably think of that would be on the person. They would allow that to protect the officer, to make sure there were no weapons stashed anywhere, and also to prevent any evidence from being destroyed. But that law--that exception to the Fourth Amendment’s warrant requirement--was designed in an era where things that would be searched were tangible and limited, not like the sort of things we see today.

Professor Marcus: Yes, but I take it the government argued before the Supreme Court that even though it was a different kind of item they were searching for, nevertheless a warrant would really be inappropriate.

Professor Gershowitz: What the government argued is what we hear a lot about in law school and in the practice of law as a “bright line rule.” A rule exists that we will always treat each item the same so that the police have nice clear rules. They know what to do, because there’s a lot of these arrests and a lot of these searches every day, so the government’s position was now that we live in an electronic world…the rules should apply exactly the same; because we can search the cigarette pack in your pocket, we should also be allowed to search the cell phone that’s right next to it.

Excerpt 2: What was the Supreme Court’s decision on cell phone searches?

Professor Gershowitz: It was a little bit of a shocker. Those of us who follow the issue… were surprised to see the decision be completely unanimous, 9-0.  The court in a fairly sweeping opinion said, “we are not—categorically not—going to allow warrantless searches of a cell phone as part of an arrest.” For situations like that, the Court took the position that the police must go get a warrant.

Excerpt 3: What important issues are still open?

Professor Gershowitz: Any Supreme Court case always opens certain doors. I think the door that’s open next probably is “What’s that warrant supposed to look like?” The question there will be, “Will judges be allowed to just issue a warrant for a cell phone, or are they going to have to particularize that the way most warrants in the United States are particularized to search a particular area or a particular thing?” Will the warrant specify, for instance, to search Facebook and text messages and e-mail, but not your photos and not your call history? There’s an argument that the warrant should have to be very particularized. At this point there’s really no guidance from the Court about how to answer that question yet.

Excerpt 4: Will there be a lot of litigation coming over the next couple of years?

Professor Gershowitz: I think there will be a lot of litigation about that issue, and there is already a lot of litigation. As you well know, there are other exceptions to the warrant requirement, and I think there will be a lot of litigation about those as well. One area will be whether people have actually consented to the search of their phone, which would be a viable way for the police to get into it, or whether there are exigent circumstances that exist. I don’t know if you have feelings about whether either of those are going to be viable claims for defendants to make or whether they’ll be a tough road to go.

Professor Marcus: Well, I think they’re going to be making those claims. I think there are going to be very serious questions, particularly in a fast-moving case where the police are chasing alleged drug dealers and the like. How it will play out in cases, gosh, it’s almost impossible to know.

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