POLICE NEED A WARRANT TO SEARCH YOUR CELL PHONE IN WISCONSIN

The U.S. Supreme Court issued a single decision in two cases yesterday – Riley v. California and US v. Wurie – holding that police generally cannot search a cell phone recovered from a person incident to his or her arrest without a search warrant. This issue was in dispute across the country before yesterday.

The unanimous Court cited the unreasonable intrusion of an individual’s privacy as a basis for the decision, finding that it was not outweighed by any legitimate government interest. In part, based upon the sheer volume of information that can be stored on a smartphone, and that such volume of information was not contemplated in the Chimel, Robinson, or Gant decisions addressing valid searches incident to arrest. In response to government concerns about remote data wiping or encryption while police obtained a search warrant, the Court reasoned that neither problem is prevalent, and that departments can take steps to minimize the possibility of that happening, such as turning the phone off.

The next step will be to see how states interpret the holding. In particular, the Wisconsin Supreme Court previously held that it was valid when an officer answered a person’s phone after it was seized incident to arrest, and where the detective had probable cause to believe the person was involved in drug use. State v. Carroll, 2008 WI App 161, 314 Wis. 2d 690. At first glance, it seems that this holding is not disturbed by yesterday’s opinion given that the intrusion is limited to the phone call and does not expose the voluminous information on the phone. However, a challenge may be successful by arguing that a locked smartphone can be accessed when answering a phone call, thus exposing the voluminous information the US Supreme Court was concerned with in Riley. Continue to follow Mastantuono & Coffee as this issue develops in Wisconsin