Police officers may open the flip-phone of a person they just arrested and examine its screen-saver but need a warrant to search the text messages and other information contained within the device in the absence of a public-safety emergency, Maryland’s top court unanimously ruled Monday among a trio of cellphone decisions.
The rulings marked the Court of Appeals’ first chance to apply to Maryland police the U.S. Supreme Court’s 2014 decision that warrantless, post-arrest cellphone searches generally violate the Constitution’s Fourth Amendment prohibition on unreasonable searches. The justices held in Riley v. California that a warrant is necessary unless an emergency search is required to prevent imminent catastrophe, such as a bomb’s detonation or the killing of a kidnapped child.
The Supreme Court, however, did not specifically address whether police may open a flip-phone following an arrest without either a warrant or an exigent circumstance.
The Court of Appeals filled in that gap for Maryland in upholding a 2011 carjacking conviction. The high court said the arresting officer’s opening of Ronald Sinclair’s flip-phone and observing the screen image of the stolen car was constitutional because the officer did not have to search inside the phone to find the photos.
Judge Robert N. McDonald, writing for the court, noted the Supreme Court said an officer “may physically inspect and secure the phone, which would include an examination of the phone and its case for weapons, powering off the phone and removing its batteries.”
“Thus, physically opening a cell phone would be a lawful search under Riley,” McDonald wrote. “And a photograph of a screen-saver image in plain view when the phone is physically opened — an image that the investigator immediately recognized as the stole item under investigation — would not be subject to suppression.”
Byron L. Warnken, who has written a treatise on Maryland criminal procedure, said flip phones present an intriguing rub to the Riley decision.
“Am I [as a police officer] making a Riley intrusion when I open a phone? How much intrusion into the phone is an intrusion Riley does not want?” said Warnken, a University of Baltimore School of Law professor. “Is this the kind of case that goes up to the Supreme Court as they continue to fine tune what they meant in Riley? I don’t know.”
The Supreme Court, should it ever to decide to consider the issue of flip-phones, likely will not take the case from Maryland if it is appealed. That’s because Sinclair, who is serving a 40-year prison sentence for armed carjacking, did not preserve the issue for appeal, according to the Court of Appeals.
‘Good-faith exception’ for other searches
The Court of Appeals, in its other two decisions, said the officers had exceeded their constitutional authority under Riley by examining saved text messages and photos. But the court held that the damning information officers found was validly admitted as evidence in court because the arrests were made before the Supreme Court’s Riley decision, when the officers reasonably believed their search of the phones was constitutional.
Before Riley, police officers had broader authority to conduct searches of personal items incident to a person’s arrest, the Court of Appeals said, citing the Supreme Court’s 1973 decision in United States v. Robinson.
“Riley no doubt represents the Supreme Court’s effort to adjust Fourth Amendment jurisprudence to the quickly evolving digital age,” said Chief Judge Mary Ellen Barbera, who wrote the other two state court opinions. “The Riley court understood, though, that its holding represents a significant departure from what had long been the search incident to arrest rule, as described and applied in Robinson and its progeny.”
Thus, the officers who searched the contents of the cellphones were “acting in good-faith reliance on then-controlling authority,” Barbera wrote.
Brian S. Kleinbord, of the Maryland attorney general’s office, said the three decisions “reinforce that the Supreme Court’s decision was a watershed” in limiting warrantless searches of the cellphones of arrested individuals.
“The police officers prior to Riley were acting reasonably” in searching the phones’ contents, said Kleinbord, who heads the office’s criminal-appeals division. “The court applied the good-faith exception and recognized that the officers were acting properly.”
Warnken, the law professor, said he is not surprised that the Court of Appeals found the police who made the arrests before the Riley decision enjoyed a “good-faith exception” to the warrant requirement the Supreme Court announced in that case.
“Police could not have been expected to know of Riley before Riley,” he said.
Demby was sentenced to a suspended prison term of four years and three years’ probation. Spence was sentenced to 18 months in prison, with all but 90 days suspended, three years’ supervised probation and a $1,000 fine, of which $500 was suspended.
The Maryland Office of the Public Defender represented all three appellants. Brian M. Saccenti, who heads the office’s appellate division, said Monday afternoon that he is reviewing all three of court’s decisions.