When do police need a warrant to search a cell phone?
Of course, the answer depends on the circumstances – the many exceptions to the Fourth Amendment’s search warrant requirement apply to cell phones just as they apply to homes and pockets…
In 2014, the United States Supreme Court held, in Riley v. California, that police cannot search a cell phone without first obtaining a warrant, and that the “search incident to arrest exception” does not excuse a warrantless search of a cell phone.
This week, in State v. Moore, the SC Supreme Court held that Riley v. California does not apply to SIM cards. According to the SC Supreme Court, although police need a warrant to search a cell phone, they can just remove the SIM card from the phone and search that without first obtaining a warrant.
Is that a reasonable interpretation of Riley v. California? Or, is the SC Supreme Court ignoring US Supreme Court precedent in favor of loosening the constraints of the Fourth Amendment on SC law enforcement?
When Do Police Need a Warrant to Search a Cell Phone?
Police need a warrant to search a cell phone unless there is a valid exception to the Fourth Amendment that applies.
For example, “hot pursuit” would be an exception to the warrant requirement when a suspect runs into a residence – if they are chasing the suspect, police don’t have to stop, go get a warrant, and then return before entering the home.
Another exception to the warrant requirement is the “automobile exception.” When a police officer believes there is probable cause that a crime is happening or that there is evidence of a crime in a vehicle, they do not have to wait on the side of the road as another officer goes to secure a search warrant, although the officer’s determination that there was probable cause can be challenged later in court.
One exception to the warrant requirement for a cell phone is the “border search exception.” If you are crossing the border (or just boarding an airplane), law enforcement can “manually” search your phone without a warrant or even suspicion that a crime is occurring. They can also seize your phone and conduct a forensic examination of the phone, without a warrant, if they have a “particularized suspicion” that there is criminal activity.
Federal constitutional law is binding on state appellate courts unless the state provides additional protections to its citizens under the state constitution. So, how does the SC Supreme Court justify not requiring a warrant when SC police search a cell phone?
Do Police Need a Warrant to Search a SIM Card?
In Moore, the defendant shot the victim in a “drug deal gone wrong.” He fled the scene but left his cell phone in the victim’s vehicle. When police arrived, they obviously wanted to know who he was – information that most likely would be found on the cell phone’s SIM card.
Although most people probably see their SIM card as an integrated part of their cell phone (it’s inside the cell phone, takes some effort to remove, and the phone doesn’t work without it), the SC Supreme Court went to great lengths to explain why, in their view, the SIM card is separate from the cell phone and therefore does not require a search warrant…
Without waiting to get a warrant, they removed the SIM cards from three cell phones that were located in the victim’s vehicle, analyzed them, and retrieved information from them including ownership, a partial call log, and some text messages that had been sent in the previous year.
In the immediate aftermath of the shooting, law enforcement officers found three cell phones, including one later identified as Petitioner’s “flip phone,” in the area of the driver’s floorboard after emergency medical personnel removed Hall from the vehicle. Without obtaining a warrant, the officers removed the cell phones’ subscriber identity module (SIM) cards to determine ownership. The officers then obtained a warrant to search the contents of Petitioner’s flip phone.
After searching the SIM cards, then they got a warrant to search the phones…
Why Isn’t a SIM Card Part of a Cell Phone?
The SC Supreme Court says that a SIM card is not part of a cell phone, and therefore not covered by Riley v. California, because:
- “[N]ot all phones have SIM cards.” Some phones do not have a SIM card. Therefore, a SIM card is not a part of the cell phones that do have SIM cards. This same reasoning would apply to a memory card that potentially holds your photographs, documents, videos, music, and other data, wouldn’t it?
- “SIM cards may be transferred from one phone to another.” Because a SIM card can be removed from a phone and installed in a different phone, the SIM card is not part of the cell phone. Again, this would also apply to memory cards. Can police in SC now remove the memory card from your phone and search it without a warrant?
- “[A] single phone can utilize a series of SIM cards to easily change the phone’s number and subscriber information.” Again, because you can remove and replace the SIM card (like a memory card), it is not a part of the cell phone.
The Court goes on to explain that, because the SIM card contains less information than the other parts of the phone, and that information is stored randomly and not in chronological order, the privacy implications of Riley are “inapplicable or, at best, greatly diminished…”
According to one witness at trial, the SIM card on this particular type of older model flip phone “primarily contains the assigned cell phone number,” but can also contain incomplete records of the contacts stored on the phone as well as partial call and text logs. A SIM card does not store call or text logs in reverse chronological order but, rather, randomly if at all. We conclude searching a SIM card is fundamentally distinct from searching the full contents of an unlocked cell phone, making much of the language in Riley concerning the privacy implications for searching a cell phone inapplicable or, at best, greatly diminished here.
So… SIM cards (like memory cards) can be removed, and therefore they are not part of a phone. Also, because there is less information contained on the SIM card than on the phone itself and that information is stored randomly instead of in chronological order, there are no privacy concerns. Does that make sense?
In Moore, they were talking about an older flip phone which “primarily contains the assigned cell phone number,” and “can also contain incomplete records of the contacts stored on the phone as well as partial call and text logs.”
Assuming the Fourth Amendment does not protect “incomplete records,” as opposed to complete records in chronological order (that’s not true), does the SIM card for more modern smartphones (which most people have today) also contain only incomplete records?
Because law enforcement will interpret this appellate opinion as a green light to search anyone’s SIM card at any time – the reasoning of the SC Supreme Court in Moore applies to SIM cards for more modern SIM cards just as it applies to old flip phones.
Law enforcement may also – reasonably – interpret the opinion as authorizing them to remove and search anyone’s memory card at any time` or any other removable part of a cell phone that may contain partial or incomplete data.
Are There Other Exceptions to the Rule that Police Need a Warrant to Search a Cell Phone?
There are other exceptions to the warrant requirement that could apply to a cell phone search – for example, the SC Supreme Court cited public safety concerns. The trial court, on the other hand, admitted the evidence after finding that the cell phone had been abandoned by the defendant (there is no privacy interest in abandoned property).
Public Safety Concerns
The SC Supreme Court noted that discovering the identity of the cell phone’s owner was a public safety concern, and therefore a warrant was not necessary:
Moreover, at the time of the warrantless portion of the search to discover the identities of the cell phones’ owners, law enforcement officers were responding to an active crime scene, not knowing the identity and whereabouts of the shooter. The public safety concerns are self-evident. Under the circumstances presented, we hold the limited search of the SIM cards to identify the phone numbers was reasonable and in no manner constituted an unreasonable search or seizure.
Anytime an attorney making an argument, or a court, says a thing is “self-evident,” or uses the modifier “clearly” or “obviously,” you should pay close attention. If the thing was self-evident, would the speaker need to tell you that?
The shooter was gone from the scene when police arrived. Identifying and locating a crime suspect is a public safety concern, but how is this different from every other shooting, robbery, or violent crime?
The altercation was over, the suspect had fled the scene, and there was no reason to believe there was a further danger to the public. At least, no more than there would be in any other violent crime. Is the Fourth Amendment’s warrant requirement now suspended any time a suspect commits a violent crime?
The Court is not really articulating a public safety exception here – everything police do to investigate a crime is a matter of public safety. Is there now an “identify and locate” exception to the Fourth Amendment in SC? When the danger has passed, and what remains is the routine investigation of a shooting, the public safety exception to the Fourth Amendment’s warrant requirement does not apply.
Abandonment
The trial court based its denial of the motion to suppress on abandonment – when a suspect abandons their phone (or other possessions), they no longer have a privacy interest in it and therefore the Fourth Amendment does not apply.
The Court notes that “it does not appear as simple as the dissent’s contention that ‘Riley created a categorical rule that, absent exigent circumstances, law enforcement must procure a search warrant before searching the data contents of a cell phone…’ Rather, other courts have found the abandonment exception, as well as other exceptions, may continue to justify a warrantless search of a cell phone, even post-Riley.”
The majority opinion dismisses the dissent’s discussion of abandonment as “non-responsive,” although abandonment was the trial court’s rationale for denying suppression. After explaining why abandonment should excuse the officer’s failure to get a search warrant, the Court then acknowledges that “a close question is presented on the issue of abandonment,” and they “elect to resolve this appeal on other grounds.”
The Court Could Have Affirmed the Conviction Without Holding that SIM Cards Don’t Require a Warrant
The SC Supreme Court could have found that, although the Fourth Amendment was violated under Riley v. California, exclusion of the evidence or reversal of the conviction was not required.
The Court knows this, and they engaged in an extensive discussion of the independent source doctrine, inevitable discovery doctrine, and the good faith doctrine. The Court held that all three applied to the facts of Moore, finding that, even if there was a Fourth Amendment violation, exclusion of the evidence would not be required.
Nevertheless, they took the opportunity to announce a broad rule that SIM cards can be searched without a search warrant, a rule that will also allow police to search memory cards or any other form of removable media.
Independent Source Doctrine
The Court points out that the evidence regarding the defendant’s identity would be admissible anyway because it was separately obtained from an independent source.
Video was obtained from a nearby gas station that showed the defendant “driving the distinctive getaway vehicle into the parking lot and loitering around the car for several minutes while police cars drove past the gas station with their blue lights flashing and sirens blaring.” He then bought a pack of cigarettes in the gas station, providing his date of birth which was recorded on his receipt and produced at trial.
If evidence that was obtained unlawfully was also obtained lawfully from a separate, independent source unconnected to the constitutional violation, the exclusionary rule does not apply, and the evidence is admissible at trial.
Inevitable Discovery
Similarly, if evidence would have been “inevitably discovered” by another means, it is admissible at trial.
In this case, the victim’s cell phone also contained the information police were looking for and they would have eventually obtained it from the victim’s cell phone.
Good Faith Reliance
The crime occurred in 2013, beforeRiley v. California had been decided by the US Supreme Court and, “[a]t the time, the law was far from settled in terms of the necessity of obtaining a warrant to search a cell phone, much less a SIM card alone.”
When the law is not clear, law enforcement is entitled to rely on what they reasonably believe the law is at the time. Although a Fourth Amendment violation occurs, the evidence is not excluded if law enforcement could not have known that it was a Fourth Amendment violation at the time.
Harmless Error
Although the Court does not discuss it, they also could have found that there was a Fourth Amendment violation but that it was harmless in light of the overwhelming evidence, independent of the illegal search, of the defendant’s guilt.
What is the Effect of the Moore Case?
In Mooreand in State v. McCall, also decided this month, the SC Supreme Court is walking back Fourth Amendment protections that were articulated by the US Supreme Court in Riley v. California and in Missouri v. McNeely.
After Moore, a police officer in SC can walk up to you, demand your cell phone or forcibly take it from you, remove the SIM card or memory card from your phone, and search it without a warrant or probable cause.
The seizure and search of a SIM card (or removable parts containing incomplete data that is not in chronological order) are not covered by the Fourth Amendment in SC.
SC Criminal Defense Lawyers in Myrtle Beach
If you have been charged with a crime in South Carolina, there may be grounds to suppress evidence in your case based on constitutional violations, although the protections of the Fourth Amendment are being systematically eroded by our Supreme Court.
Call Coastal Law now to schedule a free case consultation by calling (843) 488-5000 or by contacting us through our website.
