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Fourth Amendment Protects Cell Phone Privacy

  • July 2, 2014
  • Clayton Rice, Q.C.

In a landmark case reported as Riley v. California, 573 U.S. __ (2014) released on June 25, 2014, the Supreme Court of the United States unanimously held that a warrantless search and seizure of digital contents of a cell phone during an arrest violated the Fourth Amendment and was unconstitutional. The backdrop to the case was based in Chimel v. California, 395 U.S. 752 (1969) where the court held that police officers arresting a person may search the body of the person without a warrant and the area within immediate reach to protect material evidence or the officers’ safety. That is the origin in American law of the doctrine known as search incidental to arrest (SITA). It is often called the Chimel rule. The question in Riley was whether the SITA doctrine extended to the digital contents of a cell phone seized from the petitioner at the time of his arrest.

Chief Justice John Roberts concluded, slip op., at 10-11 and 14, that the data stored on a cell phone cannot be used as a weapon or to help an arrestee. With respect to the preservation of evidence, the data would be vulnerable to remote wiping from the time an individual anticipates arrest to the time any eventual search of the phone is completed. The cell phone therefore failed the warrantless search test.

Chief Justice Roberts emphasized, slip op., at 17-18 and 28, that cell phones differ “in both a quantitative and a qualitative” sense from other objects that might be carried on an arrestee’s person. The immense storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects many distinct types of information that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey more than previously possible. He stated, slip op., at 18: “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.” Third, the data on a cell phone can date back to the purchase of the phone or earlier.

The Chief Justice concluded as follows, slip op., at 28: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

The application of the SITA doctrine to cell phones is pending before the Supreme Court of Canada in a case reported as R. v. Fearon, 2013 ONCA 106. The reasoning in Riley together with the Supreme Court of Canada’s analysis regarding computer searches in R. v. Vu, [2013] 3 S.C.R. 657 provide compelling reasons for the Supreme Court of Canada to adopt the lead of the Supreme Court of the United States. I will discuss the Supreme Court of Canada’s opinion in Vu in my next post.

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