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February 7, 2025
Privacy expectations and Fourth Amendment protections of cellular phones and their related data came into focus on June 25, 2014, when the United States Supreme Court decided Riley v California. In this consolidated case (Wurie and Riley), which was previously discussed in MSP Legal Update No. 109, the Court held that the search incident to lawful arrest exception to the general requirement to obtain a search warrant did not extend to a search of the electronic data contained in a cellular phone, even where the arrested person possessed that phone at the time of the arrest.
The concerns advanced by the government for officer safety or preventing the destruction of evidence, were inadequate to justify a warrantless search of the cell phone incident to arrest. The cell phone at issue in Riley was a “smartphone”, with Internet connectivity, advanced computing capability and large storage capacity (by 2014 standards, this ranged from 16-64 GB). The warrantless police search of the phone yielded photos and videos that were introduced at trial. In the companion case of Wurie, it was a flip phone that was searched without a warrant.
The Court ultimately held that a warrant “is generally required” to search a cell phone—even one that is properly seized pursuant to an arrest. The court recognized that this decision may negatively impact law enforcement’s ability to combat crime. The Court did leave open the possibility that, on a case-by-case basis, if the facts justify the intrusion, police are free to argue for other exceptions, such as exigency.
In People v Hughes, the Michigan Supreme Court (MSC) had an opportunity to weigh in on the privacy aspects of cellular telephone data. In Hughes, the police had obtained a search warrant for a cellular phone to look for evidence related to drug dealing. They performed the usual full extraction of the data from the phone, and then limited their examination of that data for evidence of drug dealing consistent with the search warrant they had obtained.
About a month later, at the direction of the prosecutor, the police conducted a second search of the extracted data set for an unrelated crime. This was outside the scope of the initial search warrant and no new search warrant was obtained.
The MSC held that a search of a cell phone will generally require a search warrant, taking note of the United States Supreme Court decision in Riley. The MSC noted that there are extensive privacy interests at stake with cell phone data, with the sensitive records contained therein, and the broad array of private information. Along those lines, the MSC further stated: “we decline to adopt a rule that it is always reasonable for an officer to review the entirety of the digital data seized pursuant to a warrant on the basis of the mere possibility that evidence may conceivably be found anywhere on the device or that evidence might be concealed, mislabeled, or manipulated. Such a per se rule would effectively nullify the particularity requirement of the Fourth Amendment in the context of cell-phone data…”.
In line with the MSC’s concern that cell-phone data carries with it a high level of protection under the Fourth Amendment, the Michigan Court of Appeals in People v Acumby-Blair, held that a police officer’s act of answering a defendant’s cell phone constituted a search under the Fourth Amendment, and as such, required a warrant or a recognized exception.
Concerns about search warrants being sufficiently particular so as to avoid “general warrants”, was not only a previous concern of the Michigan Supreme Court, but was recently raised as a concern in People v Carson, where the Michigan Court of Appeals affirmed the particularity requirement for search warrants in the cell phone context. (Note: The Carson decision is currently on appeal to the Michigan Supreme Court.)
Other privacy aspects of cell phone data have continued to garner protection under the Fourth Amendment, as evidenced by the United States Supreme Court holding in Carpenter v United States, as previously discussed in MSP Legal Update No. 134, where the Court held there is a legitimate Fourth Amendment privacy interest in cell phone location data, commonly referred to as Cell Site Location Information (CSLI), such that the government is generally required to obtain a search warrant to obtain CSLI. Given the important privacy interests at stake, the Court rejected the government’s argument that the third-party doctrine was applicable in this case.
Lastly, in 2020, the Michigan Constitution was amended to provide specific protections for electronic data and communications. Article I, Section 11, of the Michigan Constitution now reads, in relevant part: “The person, houses, papers, possessions, electronic data, and electronic communications of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things or to access electronic data or electronic communications shall issue without describing them, nor without probable cause, supported by oath or affirmation.” Emphasis added.
Officers are reminded to be cautious when reviewing online resources intended for law enforcement in this area, especially those from otherwise reputable sources that may predate the USSC decision in Riley and its progeny. From Riley to present day legal developments, one theme should be clear. Police officers wishing to search a cellular phone will need a search warrant that describes with sufficient particularity what is being searched for, or a recognized exception to the general requirement to obtain a search warrant. In most cases, the exception that is most likely to be applicable will be consent by a proper party.
