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Drug crime and other arrests need warrant to search cellphones

The U.S. Supreme Court issued a unanimous decision recently in giving a broad cloak of privacy to cellphones. Thus, for example, when someone is arrested for a drug crime in California, the police must get a search warrant to look through the contents of any cellphone taken from the arrestee. The decision applied also to remotely stored data that is stored by a service provider in an Internet “cloud,” and which can be accessed by a hand-held device.

The Court cut out a narrow exception for truly exigent circumstances but ruled that, even then, the search would have to be approved after the fact. The decision caused the reversal of the criminal conviction of a San Diego man and another individual because information from their cellphones was used to build a case against them. The decision departed from the general principle that a warrantless search can be made incident to a lawful arrest.

There is now a limit on a search incident to arrest: it does not apply to digital hand-held devices. The Court did not have to overrule any prior jurisprudence. Instead, it simply carved out an exception that applies to digital communications devices taken from the arrestee.

The Court noted that, today, people carry cellphones filled with a multitude of personal information. It defines every nook and cranny of a person’s existence. Since police cannot go to a house and make an extensive search without a warrant, they also cannot access the cellphone, which may hold even more information than they may have found by searching the home.

Residents of California who are arrested and charged with a crime, including a drug crime, are now protected from an invasive cellphone search, unless a search warrant describing the material sought, and the probable cause to allow it, is duly approved. This is in accordance with Fourth Amendment privacy concerns. Nowadays, the depth of private materials stored digitally is so extensive that a search of that depth and breadth would have to be first approved by a magistrate upon a narrow delineation of what is to be searched, and upon the establishment of probable cause to do it.

Source:, "Opinion analysis: Broad cloak of privacy for cellphones", Lyle Denniston, June 25, 2014

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