One of the most common misconceptions of police authority is whether or not a particular search of a person or item requires a search warrant. Sometimes it is the public who does not understand, thinking that a warrant is needed for EVERY search. Other times it is the police themselves who mistakenly believe a warrantless search is acceptable as long as they can articulate its necessity. As is often the case with conflicting beliefs, the truth lies somewhere in the middle.
In June of this year the United States Supreme Court was faced with a pair of cases (Riley v. California and U.S. v. Wurie) which revolved around the search of cell phones by police and the determination of whether or not such searches were reasonable. The defendants, Riley and Wurie, argued that such a search violated their civil rights. The police argued that the searches were incident to arrest and consistent with the long held practice of securing and even searching property found on a suspect’s person following arrest – similar to looking through a wallet. In the end, the Court decided that the truth does in fact lie somewhere in the middle.
Here are a few tips, based upon the decisions above, which will help ensure both the public and police when it comes to cell phones as potential sources of evidence.
- Secure but do not look. The courts did not prevent officers from securing potential evidence found upon a suspect incident to arrest; officers retain the right to do so. However, once the cell phone is secured, a warrant will normally be required prior to viewing the content of the phone. Obtaining a warrant will require officers to show probable cause, detailing for the court how potential information will relate to criminal activities.
- They aren’t litter. One argument relied upon by the government was that cell phone are little more than “pocket litter,” similar to receipts or notes often found in someone’s pockets or wallet. The Court did not agree. Chief Justice Roberts wrote, “One of the most notable features of modern cell phones is their immense storage capacity.” Because of this, a search of a cell phone is more than scraps of information collected over a few-day period. It is akin to viewing every piece of mail, telephone calls and websites visited for months or even years into the past.
- Articulate the need. The Court did not completely rule out the ability to conduct warrantless searches based upon exigent circumstances, but it did severely limit what situations would qualify as exigent. Although the Court specifically mentioned child abductions and bomb threats as examples of exigent circumstances, it also repeated the previous standard of immediate officer safety or the safety of innocent civilians. However, if an officer does conduct a warrantless search, they must be prepared to articulate not only why the search was necessary but also why waiting for a warrant would have unreasonably endangered officers or the public.
- A warrant protects everyone. While in the heat of the moment, when you are looking to solve an important case, it may appear that taking the time to get a warrant will jeopardize everything. But not getting one could be even more dangerous. Obtaining a warrant not only protects any evidence which may be uncovered, it also protects citizens from unlawful searches as well as the citizens you are trying to protect by conducting the search to begin with.
As Chief Justice Roberts stated, the message to police is “get a warrant.”
Disclaimer: The content in this article is the opinion of the writer and does not necessarily reflect the policies or opinions of US Patriot Tactical.
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