California Police Chief- Fall 2013 | Page 8

LEGAL NEW RULES ON WHEN CELL PHONES CAN BE SEARCHED PURSUANT TO A LAWFUL ARREST I t is becoming harder for law enforcement to access information on cell phones of persons they have arrested without first securing a search warrant. Historically, an officer could search a person, and all items on his/her person, pursuant to a lawful arrest. However, that has recently been challenged successfully when it comes to cell phones. On June 25, 2014, the United States Supreme Court, in the case of Riley v. California, ruled unanimously that “police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” Very recently, on March 3, 2016, the Ninth Circuit U.S. Court of Appeals held, in the case of U.S. v. Lara that the Fourth Amendment waiver signed by a person released on probation or parole does not give law enforcement the right to search his/her cell phone without a warrant. Facts in Riley Riley was stopped for driving with expired tags and it was then learned that his license had been suspended. His car was impounded and searched and they discovered two handguns and he was arrested. “An officer searched Riley incident to the arrest and found items associated with the “Bloods” street gang. He also seized a cell phone from Riley’s pants pocket.” The phone was a “smart phone,” and the officer accessed information on the phone and noticed that some words were preceded by the letters “CK” – a label that, he believed, stood for “Crip Killers,” a slang term for members of the Bloods gang.” “The police also found photographs of Riley standing in front of a car they suspected had been involved in 8 California Police Chief | www.californiapolicechiefs.org By: Martin J. Mayer, General Counsel California Police Chiefs’ Association a shooting a few weeks earlier. Riley was ultimately charged, in connection with that earlier shooting, with firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder.” “Prior to trial, Riley moved to suppress all evidence that the police had obtained from his cell phone. He contended that the searches of his phone violated the Fourth Amendment, because they had been performed without a warrant and were not otherwise justified by exigent circumstances. The trial court rejected that argument. Riley was convicted on all three counts and received an enhanced sentence of 15 years to life in prison.” The California Court of Appeal affirmed. The California Supreme Court denied the petition for review but the U.S. Supreme Court accepted the case. Court Discussion in Riley The Court noted that the Fourth Amendment protects against unreasonable searches and seizures and “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” As such, ‘in the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.’” Since 1914, it has been well accepted that a search pursuant to a lawful arrest constitutes an exception to the warrant requirement. Weeks v. United States, 232 U.S. 383. In 1969, the Court, in Chimel v. California, 395 U.S. 752, held that, “When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to