The Supreme Court decided Riley v. California and United States v. Wurie yesterday, June 25, and unanimously held that the search incident to arrest doctrine does not allow law enforcement officers to search data on cell phones without a warrant. “Without the protections this opinion provides, law enforcement officers could have had free rein to search vast swaths of personal, private information accessible through anyone’s phone, simply by arresting him or her for any violation as small as driving without a seat belt or a minor violation of a restraining order,” said Tillman J. Breckenridge, Counsel in Reed Smith LLP’s appellate practice.

The cases arose out of law enforcement officers, after arresting suspects, viewing data on the phones they had at the time of arrest. The Court stated that the United States and California’s primary justification for searching the phones without a warrant was the need to prevent destruction of evidence. In particular, the governments expressed a concern that compatriots of an arrestee could remotely wipe data from phones before police can obtain a warrant. The Court ruled that the justification does not support such searches because law enforcement can prevent erasure by turning off the phone or placing them in Faraday bags to prevent remote wiping. In addressing Faraday bags, the Court relied on and cited an amicus brief on behalf of criminal law professors prepared by Breckenridge, Reed Smith Associate Tara A. Brennan, and Professor Adam Gershowitz of William and Mary Law School.

“As a result of this decision, Faraday bags likely will become more prevalent in law enforcement officers’ squad cars and pockets, and regular people can feel more secure that a neutral magistrate will be involved before anyone searches their phones after an arrest,” Breckenridge said.

Click the following links to view the Reed Smith brief, the opinion of the Court, and more coverage of the decision.

Client Alert 2014-182