On June 25, 2014, the United States Supreme Court issued the landmark decision of Riley v. California, which held that “The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” Although the case is too new for any Ohio appellate cases to have applied the standard and reasoning, this blogpost will briefly examine several points of impact that Riley will have on law enforcement and citizens in Ohio.
1. Pressure to obtain Consent to the Search of the Cell Phone. In spite of the search warrant requirement of Riley, the “consent” exception to the search warrant requirement remains in effect. In other words, a police officer need not obtain a search warrant if the individual possessing the cell phone voluntarily agrees to permit the police officer to view its contents. Because Riley has overridden a number of other exceptions to the search warrant requirement, I would expect that police officers will greatly increase the pressure to obtain consent to search and view the contents of the phone.
2. Enforcement of Anti-Texting while Driving Laws. Many municipalities have recently enacted laws forbidding texting while driving. Most of these ordinances still permit the driver to make cell phone calls and use the gps function. An interesting issue will arise when a police officer observes what he/she believes to be texting in violation of the ordinance. If the driver denies offense, but refuses to grant consent to the police officer to search the cell phone, does the officer go to the trouble of seizing the cell phone, preparing a search warrant, and contacting a judge? Seems like a lot of effort for a minor traffic offense. Especially considering that many anti-texting ordinances require a non-texting purpose for the police to pull over the vehicle. Unless the driver is suspected to be involved in serious criminal activity, I would not expect many police departments to obtain search warrants for the mere purpose of enforcing the anti-texting statute.
3. Tampering with Evidence prosecutions. As recognized in Riley there are a number of ways to remotely destroy data on cell phones, even after the cell phone is seized by the police. What happens when an individual “wipes” or destroys the information on the cell phone before a search warrant can be obtained? In Ohio, such an act would constitute the criminal offense of Tampering with Evidence, pursuant to Ohio Revised Code section 2921.12. That section states, “No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following: (1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation.” This offense constitutes a felony of the third degree. I envision that if a police officer goes to the trouble of obtaining a search warrant, attempts to go back and examine the cell phone and finds that the cell phone has been “wiped” clean, Tampering with Evidence charges would be likely to be forthcoming.
4. Standing. If the police officer seizing the cell phone suspects that there may be incriminating information on the cell phone that incriminates someone other than the person from whom it was seized, the officer may elect to view the information regardless of the fact that he/she has not obtained a search warrant or consent of the owner. That third person would be unable to challenge the search and seizure of the cell phone for lack of standing.
The application of Riley on law enforcement and its practices in Ohio is yet to be determined. If you find yourself in a situation in which the police want to search your cell phone, it is critical that you contact an experienced criminal law attorney as soon as possible.