I recently wrote a piece for Law Enforcement Technology 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 cell phone 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 photos of their homes and loved ones, videos, documents, and both personal and business correspondence around with them. 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 to an officer’s ability to obtain what could be vital evidence in criminal cases. But that’s not really the outcome, nor the intention, of the SCOTUS decision. Cell phones, like homes, cars, hotel rooms and offices, still can 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 its 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 cell phone, 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 cell phone, according to SCOTUS. Even though officers may have obtained other evidence in the search, the digital storage device is different: a cell phone 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 cell phone that might reasonably contain evidence from a suspect. Officers already seize cell phones 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 cell phones. 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.
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.