If you are attached to your cell phone, you are among the majority. And when your life revolves around a device, you most likely want to avoid others looking through it, especially law enforcement. When law and technology intersect, a question is raised:
Is your cell safe from a warrantless search and seizure conducted by law enforcement? This decision is dependent upon an exigent circumstance taking place.
Exigent Circumstance: A warrantless search incident to arrest is commonly justified by the necessity to prevent physical harm to an officer or other persons, destruction of property or evidence, or the escape of the suspect.
To address this question, let’s revisit the Fourth Amendment because it was created to protect citizens from “unreasonable searches and seizures.”
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What counts as probable cause to search a cell phone? To better understand what the court will rule as enough or not enough evidence for a warrantless search to occur, let’s scroll through examples of cell phone searches in various cases.
Cell Phone Search and Seizure
In 2014, the U.S. Supreme Court addressed two cases related to the issue of cell phone search and seizure:
These cases looked at the search incident to arrest exception to the warrant requirement, when police search items that are either on the person or in proximity to the person (ie. a vehicle they were driving, a backpack on the ground, etc.). This exception has its precedent in another U.S. Supreme Court case, also out of California. In Chimel v. California,The U.S. Supreme Court held that a search incident to arrest is limited to the area within the arrestee’s immediate control, where it is justified by the protection of the officer and to prevent destruction of evidence.
In these two cases, after the defendants were arrested, officers searched them and their cell phones, both of which had potentially incriminating data on them. Following trials in these cases, both defendants were convicted and appeals eventually led to the U.S. Supreme Court.
In Riley, the defendant was stopped for a traffic violation which led to his arrest on a weapons offense. While one of the officers was searching Riley to arrest, he seized a cell phone from Riley’s pants pocket. The officer then accessed information on the phone and observed the frequent use of a gang-related term. The phone was further examined later while still in police custody. Based, in part, on the information located on the phone, Riley was charged with a shooting that had occurred a couple weeks prior to his arrest. Additionally, the State sought sentencing enhancements based on Riley’s gang membership. Riley sought to have the evidence located on his cell phone suppressed, but the trial court denied his motion and he was subsequently convicted of the charges against him.
In Wurie, police arrested him after he was observed participating in an alleged drug transaction. Police seized his cell phone at the police station. They noticed, displayed on the home screen, numerous calls from “my house.” Police then opened the phone and accessed the call log. Determining that “my house” was Wurie’s apartment, they obtained a search warrant for the apartment and following a search, located guns, drugs, ammunition and cash. He was subsequently charged with firearm and drug offenses. He sought to have the evidence suppressed, but the trial court denied his motion and he was later convicted.
The U.S. Supreme Court determined that the governmental interests (risk of harm to officers and destruction of evidence), as applied to the cell phones and their contents, were outweighed by the intrusion on the defendant’s privacy interests. They concluded that the risks normally associated with evidence at the time of an arrest are not present with digital data contained on a cell phone. It presents no risk of harm to officers; nor can it help an arrested individual escape. The Court dismissed the government’s assertions that there existed a risk of remote digital wiping or encryption.
In sum, the Supreme Court has held that, generally, police may not search digital information on a cell phone without a warrant.
The Court did indicate that situations could exist (exigent circumstances) that would allow for the warrantless search of a cell phone, but those would have to be addressed on a case-by-case basis.
Snapchat or Snap“charged”
Another 2014 case, out of Texas, addressed the issue of cell phone privacy when an individual is incarcerated, and the cell phone is stored in the jail property. In State v. Granville, following his arrest on a Class C misdemeanor, Disruption of School Transportation, Anthony Granville was booked into jail. His personal property, including his cell phone, was taken and placed in the jail property room. Sometime later, an officer obtained the phone from jail personnel to determine if the phone had “improper” photographs on it. After locating an “improper” photograph on the cell phone, Granville was charged with an additional offense, Improper Visual Photography, a State Jail Felony offense.
Mr. Granville filed a motion to suppress the photograph evidence obtained from the cell phone. The trial court granted the motion, indicating that the officer had every opportunity to obtain a search warrant for the cell phone contents and that no exigent circumstances existed. The State appealed and the case eventually found itself before the Texas Criminal Court of Appeals.
The Texas Criminal Court of Appeals, in upholding the trial court’s decision to exclude the photographic evidence, emphasized that the officer’s actions were the equivalent of going through a person’s personal effects and violated that person’s reasonable expectation of privacy in his cell phone. They rejected that State’s argument that a cell phone was no different than a “pair of pants or a bag of groceries, for which a person loses all privacy protection once it is checked into a jail property room.”
A recent case (Opinion filed on 9/22/20) out of the Texas 14th Court of Appeals addressed the issue of a seizure of a person’s cell phone “to preserve whatever was on the device” under the exigent circumstance exception. Igboji v. State. No. 14-17-00838-CR.
Following a robbery of a restaurant, employees were suspicious of Mr. Igoji based on a Snapchat video he posted following the robbery. Several days after the robbery, police requested of Mr. Igoji that he turn over the Snapchat videos. Igoji explained that Snapchat deletes itself after 24 hours so there was nothing to provide. Despite this, the phone was seized.
The Texas 14th Court of Appeals held that the warrantless seizure was not justified. There was no indication that Igoji was actively deleting evidence on his cell phone. Accordingly, no exigent circumstances existed to justify the warrantless seizure.
If you or a loved one have been arrested in Austin, Texas, it’s crucial to work with an experienced defense attorney who takes all evidence into consideration when fighting for your freedom.