I recently wrote a piece addressing the integration of digital evidence sourced from the civilian community into evidence-gathering and the building of sound court cases. It proved an interesting subject to research, especially since the proliferation of camera equipment has become so culturally pervasive.
Almost every American who has a cellphone also has a camera with him or her at all times. For many, it’s a repository for much of their personal information. They carry with them photos of their homes and loved ones, videos, documents, and both personal and business correspondence. For police, it’s an evidentiary bonanza. Or is it?
Many thought the U.S. Supreme Court’s recent decision in the case of Riley v. California, constituted a death blow. Cellphones, like homes, cars, hotel rooms and offices, can still legally be searched if the officers involved simply apply for and obtain legal search warrants. It’s pretty simple stuff that really hasn’t changed at all.
In rendering its opinion, the court held that police cannot poke around in an individual’s phone for digital evidence any more than they can do the same when it comes to their homes. For a better understanding of the court’s state of mind, let’s look at the case that prompted the decision: On Aug. 22, 2009, David Riley was arrested on a routine traffic stop in California. During a search incident to arrest, officers found Riley’s cellphone, which they searched without a warrant, in the course of which they found evidence that led them to charge him in connection to a shooting incident.
The important wording here is the phrase, “search incident to arrest,” because as any LEO is aware, an officer can legally search a subject for safety considerations incident to his or her arrest.
But finding weapons, personal items, drugs or even papers and a wallet in the individual’s pockets are not the same as finding a cellphone, according to SCOTUS. Even though officers may have obtained other evidence in the search, the digital storage device is different; a cellphone is not like identification or a butterfly knife. You must have a search warrant in order to “rummage” through the phone.
But this doesn’t mean an officer can’t, with good cause, seize a cellphone that might reasonably contain evidence from a suspect. Officers already seize cellphones when they effect arrests. Now the highest court in the land has decreed that it will take a search warrant—and obviously, the probable cause it takes in order to engender that warrant—prior to a search. Without one and absent exigent circumstances, officers run the risk of having any evidence they seize tossed on the grounds that the search was illegal.
This decision emphasizes the importance of departments having written policies governing the search and seizure of cellphones. Police should no longer automatically search digital devices. And all sworn staff, including patrol officers, should be adept at completing valid search warrants that will not only hold up in court, but help the department win its cases.
So, what should police take away from this ruling?
As digital evidence grows more prominent and routine within the criminal justice system, agencies should train their officers on proper seizure of that evidence, as well as the art of drawing legal, appeal-proof search warrants. By doing both, agencies can ensure they’ll build cases that engender good policing, as well as withstand appeal.
Editor’s Note: At the time of publication, it is unclear as to whether or not the search warrant requirement for cellphones is applicable to customs and border protection.
A 12-year veteran of police work, Carole Moore has served in patrol, forensics, crime prevention and criminal investigations, and has extensive training in many law enforcement disciplines. She is the author of “The Last Place You’d Look: True Stories of Missing Persons and the People Who Search for Them” (Rowman & Littlefield, Spring 2011). She welcomes comments at email@example.com.Keep up with Moore online: www.carolemoore.comAmazon: www.amazon.com/-/e/B004APO40S