Smart Phone Police Searches Now Require a Warrant, Unless Consent is Given

Government searches of every smart phone now require a warrant. Any other ruling in Riley v. California, would have voided the United States Constitution, Fourth Amendment’s proscriptions against governmental rummaging through the personal effects of its citizens. In Riley v. California, the Supreme Court ruled that state and federal investigators’ smart phone searches incident to lawful arrests require a warrant issued upon probable cause. The court held so, comparing the search of smart phones to that of a storage unit or entire house, based upon the extent of personal privacy data contained in smart phones.

The first stated limitation of the Riley decision is clear. “Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is ‘an important working part of our machinery of government….The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case.'” So, if there is a need and judicial allowance, the a warrantless search will be accepted and the evidence admissible.

The sufficiency of state or federal government probable cause proclamations in warrants, prompting judicial permission to search, has been extensively discussed in every jurisdiction in the country. The level of evidence necessary to secure a warrant is fact specific to the investigation and lower than beyond a reasonable doubt. With regard to smart phone searches, probable cause must relate to specific criminal activity of the immediate investigation and not general criminal activity for which search of the smart phone will or could produce evidence of a crime.

The ruling’s second significant limitation is that it does not discuss consensual searches of smart phones. This brings us to the future step of police investigative techniques in light of Riley. Police will now make every effort to secure consent before searching smart phones, thereby voiding both the need for a warrant and the importance of the Riley decision. These will be permissive searches, similar to consent search of automobiles on the highway during an otherwise legal car stop, that police will secure from the smart phone owner or possessor of the phone. Threat of a search based upon a warrant to coerce, connive, or simply scare a target into allowing a search of the smart phone is the step the police will now use to avoid the warrant requirement.

The Pennsylvania Supreme Court discussed consent searches in Commonwealth vs. Strickler and Commonwealth v. Freeman. There, the Court concluded that the issue of whether a minor encounter or constitutional seizure takes place centers upon whether an individual objectively believe that he is free to end the encounter and refuse a request to answer questions or conduct a search. In these cases the court made a critical determination that when an individual is subject to a valid detention ( a legal basis exists to conduct any police investigation), and the police continue to engage that person in conversation, the Citizen, having been in an official detention, is less likely to understand that he has the right to refuse to answer questions or a search. The court here must first determine is there reasonable suspicion of criminal activity to initially detain the person from whom consent is being sought.

Furthermore, while acknowledging the importance of the various factors, the court stressed that “conferral of the free-to-go advice” is itself, not a reason to forgo a totality assessment and therefore does not constitute a controlling factor in assessing whether the person would actually credit a police indication that he was free to leave. The suppression court must focus on whether there was a clear and expressed end point of the prior detention, the character of the police presence and conduct in the encounter under review, the geographic and temporal environment elements associated with the encounter, and the presence or absence of express advice that the citizen subject was free to decline the request for consent to search.

Each level of more intrusive questioning by any police officer must be based upon objective, articulable, reasonable suspicion of criminal behavior under federal and state constitutions for the officers’ subjective suspicions to be validated. Claims of heightened suspicion lead to an environment in which a defendant will be subjected to non-consensual search of both car and/or smart phone without probable cause.

Police Departments will commence training and expand investigative psychiatric and psychological tricks to secure consent searches of any smart phone. Regardless of how many police officers are present, on what road, at what time of day or night, and for what purpose, how consent is secured needs to be litigated. Custodial interrogation circumstances should be investigated to properly imply and defeat consent searches. Exploring the time period within which consents are secured under what circumstances the consent techniques will prove fruitful.

Please call me to discuss how and why your smart phone was searched and if you gave consent, why and what coercive measures were employed to secure your consent.

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