When do police have probable cause to search a cell phone?
In 2014, the US Supreme Court announced that a warrant is required to search a cell phone – police cannot seize your phone and search it “incident to arrest.” Then, the SC Supreme Court said, “So what?” in State v. Moore, holding that police can search a SIM card or, by analogy, a memory card without first getting a warrant.
This month, the Fifth Circuit Court of Appeals took the analysis in a different direction – not only do you need a warrant to search a cell phone, but the warrant must state probable cause to search as to each category of information.
Riley v. California – Probable Cause to Search a Cell Phone – A Warrant is Required
In 2014, in Riley v. California, the US Supreme Court held that police need probable cause to search and they must get a warrant before searching a cell phone.
Riley v. California combined two cases on appeal:
In the first case, Riley was arrested for driving under suspension. During an inventory search of his car (an exception to the warrant requirement where police can search a vehicle if they are going to tow it), police found handguns and charged Riley with possession of a concealed firearm.
Police then took Riley’s cell phone from his pocket, searched it without a warrant, and charged him with additional crimes based on photographs found on his phone.
In the second case, Wurie was arrested for drug distribution. Police then took his phone and, without getting a warrant, used his call log and photographs to locate his home where they seized additional drugs and firearms, resulting in additional charges.
In both cases, the US Supreme Court found that, even if there was probable cause to search the cell phone, a warrant was required and the search incident to arrest exception does not authorize police to seize a cell phone and search its contents.
State v. Moore – SC Supreme Court Says, “So What”
Last year, in State v. Moore, the SC Supreme Court ignored the US Supreme Court’s holding in Riley, inexplicably finding that police can just remove a phone’s SIM card without first obtaining a warrant.
Even though a SIM card is found inside a cell phone, the Court held that a warrant is not required because a SIM card is separate from the cell phone and contains only partial call logs or text messages that are not in chronological order…
That’s because it is. The same flawed reasoning would apply to a memory card or any other removable storage found in a cell phone – there is no reasonable argument that Riley v. California, in requiring a warrant before police search a cell phone, does not also require a warrant for each part of the cell phone including the SIM card or memory card.
And yet, for now, here we are – despite federal law to the contrary, the SC Supreme Court says that police in SC can remove individual components of a cell phone and search them without a warrant.
Meanwhile, the federal courts are moving in a different direction…
US v. Morton – Probable Cause to Search is Limited to Areas Where Relevant Evidence May be Found
In US v. Morton, decided January 5, 2021, the Fifth Circuit Court of Appeals broke it down even further, finding that a search warrant authorizing police to search a phone for evidence of drug possession did not extend to a search of photographs on the phone for evidence of drug sales or child pornography.
Probable Cause to Search for Evidence of Drug Possession, Not Drug Sales
Morton was stopped for speeding and, after giving consent to search his vehicle, police found a small amount of marijuana, ecstasy, and a pipe. They also found children’s school supplies, a lollipop, sex toys, and women’s underwear….
Although police were obviously concerned that Morton appeared to be a pedophile (he was also driving a van at the time), they obtained a search warrant to search his phone for evidence of “criminal drug activity.”
Ultimately, police found almost 20,000 images of child pornography instead of evidence of criminal drug activity. The Fifth Circuit suppressed these images, because law enforcement did not obtain a warrant to search for child pornography and because there was no probable cause to search Morton’s photographs for evidence of drug possession.
The Court found that there was probable cause to search Morton’s contacts, call logs, and text messages for evidence of drug possession, but not his photographs. Although the officer’s affidavit stated that they were looking for evidence of drug sales or drug trafficking, there was no probable cause to search for evidence of drug sales. Morton had simple possession quantities of marijuana and ecstasy, and there was zero evidence of drug sales or trafficking.
What type of photographs would provide evidence of possession? I suppose if Morton had taken pictures of himself holding the same drugs that were found in his vehicle, that would be evidence. Except, the police already had the actual drugs that were in his actual possession, along with Morton’s admission that the drugs were in fact marijuana and ecstasy…
Because probable cause to search was limited to probable cause to search for evidence of drug possession, and not drug sales or trafficking, and because it was improbable that evidence of drug possession would be found in the photographs on Morton’s phone, the search of his photographs was unconstitutional.
The “Plain View” Exception Does not Apply to Categories of Data Not Covered by Probable Cause
After searching his phone and finding child pornography, they got a second search warrant to search for the child pornography that they had already found…
The Fifth Circuit held that, like a home or vehicle, a cell phone has different “areas” that can be searched, and that some of those areas may be off limits if there is no probable cause to search in them.
For example, if police have a warrant authorizing them to search a home for a stolen bicycle, that search warrant does not authorize them to open kitchen drawers, dresser drawers, or small containers where a bicycle could not possibly fit.
Similarly, if a search warrant authorizes the search of a cell phone for evidence of drug possession, police cannot continue their search into areas of the phone that could not reasonably contain evidence of drug possession…
If, while searching the home for the stolen bicycle, police see a baggie of cocaine lying in plain view on the kitchen table, that is fair game – they can 1) seize that cocaine under the “plain view exception” and 2) get a second search warrant to search for additional drugs.
On the other hand, if police find a baggie of cocaine inside a small shoebox hidden in a closet when the search warrant only authorizes them to look for a bicycle, they have violated the Fourth Amendment, they cannot charge the suspect with the cocaine, and they cannot go and get a second search warrant based on the evidence that they found unconstitutionally.
The plain view exception does not apply to photographs on a cell phone when it is not likely that the evidence sought would be found in the photographs, just as the plain view exception does not apply to a small shoebox in a closet when it is not likely that a bicycle would be found in a small shoebox…
Is the Fifth Circuit Decision Binding Precedent in SC?
The Morton decision is “persuasive” precedent in SC, but it may not be binding precedent.
In matters of federal (and federal constitutional) law, SC is bound by Fourth Circuit decisions. In the absence of a Fourth Circuit decision directly on point, however, the Morton decision should be followed unless 1) the Fourth Circuit decides the issue differently or 2) the US Supreme Court weighs in on the issue.
Will the SC Supreme Court follow the Morton Court’s reasoning?
Who knows – the SC Supreme Court has already demonstrated in State v. Moore that either 1) they don’t understand how cell phones work or 2) they are willing to ignore the federal courts’ rulings on the Fourth Amendment.
SC Drug Crimes 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 such as an unconstitutional search of your cell phone.
Call Coastal Law now to schedule a free case consultation by calling (843) 488-5000 or by contacting us through our website.