To: Tim

From: Jeremy French

Date: February 8, 2016

Subj: Best Exceptions to the Warrant Requirement

In Griswold v. Connecticut, The United States Supreme Court decided that the right to

privacy, in addition to being fundamental, was substantive. This decision established the premise

for a basic right to personal privacy to which all people are entitled. The burden rest with the

government to demonstrate why it is justified in conducting a search under an exception to the

requirement to obtain a search warrant. In Riley v. California, the Supreme Court decided that

searches incident to arrest generally did not apply to the digital contents of cell phones. The

Court held that officers must generally secure a warrant before conducting such a search. In

order to decrease the number of cases that are being dismissed by the courts due to the

Exclusionary Rule, I submit to you that the two best exceptions that allow for the warrantless

search of cell phones are consent and exigent circumstances. the exigency exception could

include the need to prevent the imminent destruction of evidence in individual cases and to assist

persons who are seriously injured or are threatened with imminent injury. If consent is given by a

person reasonably believed by an officer to have authority to give such consent, no warrant is

required for a search or seizure of the subjects cell phone.

In the case of U.S. v. Camou the Ninth Circuit held that the search of the defendants cell

phone was not a lawful search under the incident to arrest exception. The government failed to

present evidence to suggest that any imminent destruction of evidence or danger to the arresting

agents was present. Therefore, no exigent circumstances existed to justify the warrantless search

of Camous cell phone over an hour and twenty minutes after being taken into custody. The
Ninth Circuit also found cell phones not to be "containers" within the vehicle exception.

Additionally, the Ninth Circuit denied the governments argument to allow the inevitable

discovery exception to cover their failure to obtain a search warrant where the agents had

probable cause but did not make an attempt to obtain a warrant. The court also found that the

good faith exception was not applicable either because it was the agents negligence that led to

the violation of Camou's rights.

The exigencies of the situations such as child abductions, kidnappings, preventing the

imminent destruction of evidence and pursuing a fleeing suspect are all compelling reasons for

law enforcement to conduct an objectively reasonable warrantless search of cell phones. In Riley

v. California the Supreme Court ruled that exigent circumstances still apply to cell phones under

limited circumstances. An attempt to wipe the cell phone or an electronic communication to

detonate an explosive would both qualify as an exigent circumstance. Although the Riley v.

California decision generally prohibits the warrantless search of a cell phone, there is nothing to

keep an individual from waiving their 4th Amendment right and consenting to a warrantless

search of their cell phone. A valid consent is a lawful substitute for both a search warrant and

probable cause.