US Supreme Court Limits Search of Cell Phone Data in Closely Watched Privacy Case

Complex Litigation partners James H. Hulme and Donald B. Mitchell filed an amicus brief in the case on behalf of The DKT Liberty Project, a nonprofit organization committed to protecting privacy, guarding against government overreach, and protecting the freedom of all citizens to engage in expression without government interference. The Arent Fox brief pointed out that more than 90 percent of Americans now carry some type of mobile telephone.

“The Supreme Court spoke with a loud and rare unanimous voice in favor of the privacy rights of citizens,” said Mr. Mitchell. “The answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple: get a warrant.”

In the opinion, the Court echoed an argument put forward by Mr. Hulme and Mr. Mitchell that the search incident to arrest exception should not be stretched to cover a search of digital files accessed remotely on the “cloud.” The Court wrote that, “Such a search would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house.” 

In Riley, David Leon Riley was arrested for a traffic offense. Despite not having a warrant, police seized Mr. Riley’s smartphone at the time of the arrest and subsequently searched it hours and days later. Prosecutors later used a photograph from that phone to place him at the scene of an August 2009 incident in San Diego where shots were fired at an occupied vehicle.

“Warrantless cell phone data searches are categorically unauthorized under the search incident-to-arrest exception,” argues the amicus brief. “If the police have probable cause to believe that the smartphone contains evidence of the crime of arrest, they may simply seize the phone and turn it off or ‘bag it’ so that there is no risk of loss or destruction of evidence while a warrant upon probable cause is obtained.”

Arent Fox’s Complex Litigation group has been recognized by Chambers USA for its “streamlined” approach that delivers “quality” results. With more than 125 litigators, the practice boasts a deep bench and international reach while having extensive experience in high-stakes litigation before federal and state courts and regulatory agencies. The group is especially proficient at managing parallel litigation in multiple jurisdictions and represents clients in matters that include intellectual property, health care, life sciences, trade, automotive, insurance, and human rights abuses.