Updated: Dec 13, 2018
Less than five years ago, the Supreme Court set new precedent as to the treatment of cell phones when it comes to the Fourth Amendment. The issue that had many jurisdictions split was whether a search warrant was required for the contents of a cell phone pursuant to a "search incident to arrest." In Riley v. California, the Supreme Court, in a unanimous opinion, held that police generally are required to get a search warrant before going through a cell phone pursuant to a “search incident to arrest.” 134 S. Ct. 2473, 2477, 189 L. Ed. 2d 430 (2014). Justice Roberts explained that the rapid growth of technology has changed how individuals treat the phones that they carry with them:
The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee's pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.
Id., at 2488–89 (citation omitted). This case was a long time coming. As technology grows and people’s lives become more intertwined with it, the court must also adopt with the changes.The S.C. Supreme Court recently published a new case that has applied Riley to the Fourth Amendment. In State v. Brown, Justice Few and the Majority held that a defendant who had dropped his cell phone in the home he burglarized, did not have an expectation of privacy (either subjective or objective) and thus the abandonment exception applied to the warrant requirement.* 423 S.C. 519 815 S.E.2d 761 (2018). However, the majority did find, based on Riley, that cell phones are a unique category:
We certainly agree with Brown that the reasoning of Riley is important to the Fourth Amendment analysis any time the police conduct a warrantless search of the digital information on a cell phone. We find, however, that Riley does not alter the standard abandonment analysis. Rather, the unique character of cell phones described in Riley is one factor a trial court should consider when determining whether the owner has relinquished his expectation of privacy.
Id., at 524, 815 S.E.2d at 764. Expect more cases involving cell phones and particularly the information they contain to come up in courts.
*We will have another post about the abandonment doctrine and whether it is an exception to the warrant rule or a prerequisite to the warrant rule.