With the pervasive use of smart phones in business today and with those phones containing confidential personal and business information, employers should be aware that if one of their employees is arrested, whether that confidential information may be viewed by law enforcement without a search warrant still awaits resolution by the Supreme Court.
On January 17, 2014, the Supreme Court granted review in Riley v. California, No. D059840, 2013 WL 475242 (Cal. Ct.App. Oct. 16, 2013) and United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), two cases involving the warrantless search of an individual’s cell phone incidental to arrest. The Court will look at the issue of whether the Fourth Amendment to the United States Constitution limits a law enforcement officer from searching through data that is stored on an individual’s cell phone when that individual is arrested.
The Fourth Amendment prohibits law enforcement from engaging in unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. The Supreme Court held that it is not a violation of the Fourth Amendment for police to conduct a full search of arrestees after a lawful arrest and that this search can include examining containers. Specifically, in United States v. Robinson, 414 U.S. 218 (1973), the Supreme Court held permissible under the Fourth Amendment a police-conducted search of a package found in the arrestee’s pocket.
Courts at the state and federal level have split as to whether the Robinson holding can be extended to allow police to search the contents of cellphones found on or near persons who are arrested. If the Court decides to extend the Robinson holding, this decision will have far- reaching implications on businesses and individuals. Current technology allows law enforcement to bypass lockscreen and password protections of cellphones and tablets and even recover information that has been previously deleted. Examples of data that can be obtained include call history, text messages, contacts, email, geo tags, passwords, and social networking information..
Jackson Lewis attorneys are available to advise companies on the scope of the Fourth Amendment and their rights in maintaining their confidential information on all of their business-related electronic devices.