Cell phone search incident to arrest violates Fourth Amendment

Washburn intern ReAnne Wentz and I won in State v. James, No. 106,083 (Kan. May 8, 2015), obtaining a suppression order in a Franklin County possession with intent to sell prosecution. An officer had arrested Mr. James after a traffic stop and went through text messages on his cell phone incident to that arrest, discovering some potentially incriminating text messages. The KSC held that a 2014 SCOTUS case, Riley v. California (SCOTUSblog coverage here) was controlling:

Riley decided two consolidated cases—one involving a smart phone and the other a less technologically sophisticated "flip" phone—both involving a warrantless search of a cell phone following arrest. The Riley Court declined to extend the Robinson rationale to the world of digital information, stating that "while Robinson's categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones." Riley held that the risks to officer safety and of evidence destruction are significantly lessened in the context of "digital data" and that the privacy interests at stake are significantly heightened because digital data storage devices such as cell phones "place vast quantities of personal information literally in the hands of individuals." Because a search for digital data on a cell phone "bears little resemblance to the type of brief physical search considered in Robinson," the Court declined "to extend Robinson to searches of data on cell phones" and instead ruled that "officers must generally secure a warrant before conducting such a search." Riley was decided while this case was pending on appeal. As such, Riley controls the constitutional issue in this case.

The KSC rejected the state's alternative argument that Mr. James had consented to the cell phone search and, as a result, reversed and remanded with directions to suppress the cell phone text messages.