SCOTUS: Search Warrant Required for Cell Phone Search
WRITTEN BY JACOB HENEREY
This June, the Supreme Court finally admitted what the rest of us already knew: Cell phones aren’t wallets. They aren’t cigarette packages. And by themselves, they aren’t dangerous. Cell phones are, however, devices containing a treasure trove of personal information. Which is why the Court’s ruling in Riley v. California, 134 S. Ct. 2473 (2014), issued just in time for Independence Day, is a victory for civil liberties advocates.
Riley was a consolidation of two cases that raised the same question: can the police search the contents of an arrestee’s cell phone without a warrant? In the case of David Riley, the police accessed text, photographs, and videos from Riley’s cell phone that implicated him as a gang member, leading authorities to charge him with additional crimes. See Riley, 134 S. Ct. at 2480–81. In the other case, police used the contact information and call log on Brima Wurie’s cell phone to locate his apartment, where a subsequent search turned up drugs and a firearm. See id. at 2481. The evidence from Riley and Wurie’s cell phones helped convict the two men, earning them lengthy prison sentences. See id. at 2481–82.
The claimed justification for the searches was the “search incident to arrest” exception to the Fourth Amendment’s warrant requirement. Though the law has long recognized the exception, its scope, and the rationale behind it, was not clearly laid out until Chimel v. California, 395 U.S. 752 (1969). In Chimel, the Court held that the twin goals of ensuring officer safety and preventing the destruction of evidence justified “a search of the arrestee’s person and the area within his immediate control.” Chimel, 395 U.S. at 763 (internal quotation marks omitted).
The Court later clarified, in United States v. Robinson, 414 U.S. 218 (1973), that although ensuring officer safety and preventing the destruction of evidence are the justifications underlying the search incident to arrest exception, the exception exists independently of those justifications. As the Court put it, “[t]he authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Robinson, 414 U.S. at 235. Therefore, when an officer searched the inside of a cigarette package found on an arrestee, the search was not unreasonable, even though the package posed no threat to the officer’s safety and was in no danger of being destroyed. In creating a bright-line rule for police officers to follow, the Court made it clear that an arrest provides all the justification needed for the search of an arrestee. From there, the Court saw no reason to require an additional justification to search an object found on an arrestee when none was needed to search the person of the arrestee.
After Robinson, then, it was clear that an arrestee could be searched, and any item that search turned up could itself be searched. That makes sense in the world of 1973. If you get arrested, and you know you’re going to be searched, it seems reasonable for the police to search your wallet too. And that’s basically the argument the government made to the Court. After all, Robinson,the only Supreme Court case applying Chimel to searches of physical objects found on an arrestee, declared those searches to be constitutional. And courts have often been hesitant to update decades-old precedents to account for changes in modern technology. See, e.g., In re Application of the U.S. for Historical Cell Site Data, 724 F.3d 600, 613–14 (5th Cir. 2013) (finding that cell phone users voluntarily disclose their location information because they choose to use cell phones); United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012) (analogizing location information given off by a cell phone to a scent that can be traced by bloodhounds); People v. Diaz, 244 P.3d 501, 512 (Cal. 2011) (Kennard, Acting C.J., concurring) (“[T]he recent emergence of [cell phone] technology does not diminish or reduce in scope the binding force of high court precedents.”). But see United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring) (suggesting that the Court should reconsider its definition of a reasonable expectation of privacy in light of modern technological developments); United States v. Wurie, 728 F.3d 1, 8 (1st Cir. 2013) (going out on a limb and predicting that most Americans “would have some difficulty with the government’s view that [the defendant’s] cell phone was indistinguishable from other kinds of personal possessions, like a cigarette package . . . or address book, that fall within the search incident to arrest exception to the Fourth Amendment’s warrant requirement”) (internal quotation marks omitted).
The Court’s decision in Riley, therefore, is an all-too-rare example of the Court recognizing that, as technology evolves, so too should our legal rules. The Court, in the majority opinion written by Chief Justice Roberts, noted that the cell phones at issue were “based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided.” Riley, 134 S. Ct. at 2484. While the United States wanted the Court to apply the Robinson standard to cell phones, the Court incisively observed that “assert[ing] that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of . . . physical items. . . . is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from Point A to Point B, but little else justifies lumping them together.” Id. at 2488.
The Court observed that, while searches incident to arrest used to “constitute only a narrow intrusion on privacy,” cell phones’ “immense storage capacity” turns searches of them into something much more invasive. Id. at 2489. A search of a cell phone “is not physically limited in the same way” as a search of an item like a wallet. Id. Previously, it was “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F.2d 202, 203 (2nd Cir. 1926). As the Court in Riley noted, “[i]f his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house . . . .” Riley, 134 S. Ct. at 2491. Among the treasure trove of information that can be found on a cell phone is location data that “can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.” Id. at 2490. The Court has suggested that information alone could be deserving of constitutional protection. See United States v. Jones, 132 S. Ct. 945, 955–56 (2012) (Sotomayor, J., concurring); id. at 963–64 (Alito, J., concurring); see also W. Jacob Henerey, Note, Where Have You Been? Your Phone Knows (and So Might the Police), 65 S.C. L. Rev. 709, 721–22 (2014) (citations omitted) (discussing signs that the Court may be willing to recognize a reasonable expectation of privacy in personal location information).
What really sunk the government’s case, however, is the fact that the justifications for the search incident to arrest exception don’t apply in the context of cell phones. See Riley, 134 S. Ct. at 2484–85 (“Robinson concluded that the two risks identified in Chimel—harm to officers and destruction of evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data.”). Whereas the facts of Robinson justified creating a bright-line rule legitimizing searches of objects found on arrestees, extending the exception to the “particular category of effects [at issue in Riley] would [risk] ‘untether[ing] the rule from the justifications underlying the Chimel exception.’” Id. at 2485 (quoting Arizona v. Gant, 556 U.S. 332, 343 (2009)).The Court recognized that digital data on a cell phone cannot be used to harm officers or “effectuate the arrestee’s escape.” Id. at 2485. And the Court’s decision does not prevent officers from searching an arrestee’s cell phone for physical objects that could do so. See id. Furthermore, “once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.” Id. at 2486.
“Cloud computing,” or “the capacity of Internet-connected devices to display data stored on remote servers,” makes the argument for extending the search incident to arrest exception to cell phones even more tenuous, because “the data a user views on many modern cell phones may not in fact be stored on the device itself.” Id. at 2491. It is hard to know whether information viewed on a cell phone is stored on the device or stored remotely, and it would be difficult (if not impossible) to create procedures allowing a search of the former, but not the latter. See id. According to the Court, extending the search incident to arrest exception to the search of all data on a cell phone would be like extending the search incident to arrest exception to a suspect’s house just because law enforcement found the suspect’s keys in his pocket. Id.
The government also expressed concerns that data on cell phones could be erased remotely or encrypted, and potential evidence would be lost while authorities waited for a warrant. See id. at 2486. The Court noted that “these broader concerns about the loss of evidence are distinct from Chimel’s focus on a defendant who responds to arrest by trying to conceal or destroy evidence within his reach.” Id. Still, the Court considered the government’s arguments, and concluded that these concerns were more theoretical than actual; government briefs “reveal[ed] only a couple of anecdotal examples of remote wiping triggered by an arrest” and “the opportunities for officers to search a password-protected phone before data becomes encrypted are quite limited” anyway as “most [such] phones lock at the touch of a button or, as a default, after some very short period of inactivity.” Id. at 2486–87. In any event, police can eliminate the (already small) threat that data on a phone will be remotely wiped while waiting for a warrant by using an advanced technique known as “turn[ing] the phone off or remov[ing] its battery.” Id. at 2487. And nothing in the Court’s opinion prevents law enforcement officials from justifying a warrantless search of a cell phone’s contents with another exception to the warrant requirement, for instance the exigent circumstances exception. See id. at 2494. In true emergencies, when a delay would genuinely risk harm to officers (or someone else) or the destruction of evidence, law enforcement officials can continue to rely on such exceptions. See id. So while the Court admitted its holding “will have an impact on the ability of law enforcement to combat crime,” given the availability of “case-specific exceptions” to the warrant requirement, that impact will almost certainly be slight. Id. at 2493–94.
While the Court’s decision in Riley is worth celebrating, it should be noted that the Court followed an old formula. The Court weighed an arrestee’s expectations of privacy against officer safety and the threat of the destruction of evidence. The fact that cell phones often contain “a digital record of nearly every aspect of their [owners’] lives” justifies a higher expectation of privacy in cell phones than in whatever physical items one might carry in a wallet. Id. at 2490. Add the fact that cell phones pose no physical danger to officers and the destruction of evidence is highly unlikely (and in any event easily preventable) and it is easy to see why the Court refused to extend the search incident to arrest exception to cell phones. The Court’s decision in Riley is noteworthy not for its reasoning, but for its application of that reasoning to the modern world.