Sunday, May 18, 2014

RILEY V. CALIFORNIA: Do Cops Need a Warrant to Search Your Cellphone When You're Under Arrest?

First, once a cell phone is securely in police
control, neither of the reasons identified in Chimel v.
California, 395 U.S. 752 (1969), for conducting
searches incident to arrest justifies searching the
phone’s digital contents. Second, the profound
privacy concerns attendant to cell phones make it
unreasonable for police officers to search digital
content without a warrant.

Do Cops Need a Warrant to Search Your Cellphone When You're Under Arrest?

Riley v. California

Does the Fourth Amendment permit police officers to perform a warrantless search of an individual’s cell phone confiscated at the time of an arrest?

In August 2009, David Riley was stopped in San Diego, California for expired car license tags on his car and a suspended driver’s license. The officer impounded Riley’s car and conducted a warrantless search of the car. The officer found two handguns linked to a shooting a few weeks prior. During the arrest, the officers went through the data on Riley’s smartphone seized without a warrant. Data on the phone linked Riley to gang activity and the shooting. It was entered into evidence at the trial. Riley was convicted on three charges. Riley argued allowing police officers to search through data on his cell phone without a warrant violated his right to be secure in his person and papers. California argues police officers need to be able to confiscate cell phones without a warrant for safety reasons and to prevent destruction of evidence. The Supreme Court’s decision in this case will affect the balance between those exigent circumstances and the scope of Fourth Amendment protection available to personal technology. 

On August 2, 2009 around 2:30 p.m., David Riley, an alleged member of the Lincoln Park gang, was parked in a San Diego neighborhood with his girlfriend and three other men. When a member of a rival gang, Mr. Webster, drove through the nearby intersection, the three men near Riley’s car fired multiple shots into Mr. Webster’s car. 

After Mr. Webster’s car crashed, the three nearby shooters got into Riley’s car, an Oldsmobile, and drove away. Eyewitnesses to the shooting claimed that Riley could have been one of the shooters but declined to give a definitive positive identification of Riley as one of the shooters. Police found Riley’s Oldsmobile in a known Lincoln Park gang area the next day almost completely hidden.

When Riley was pulled over on August 22, 2009 for expired registrations tags in his second car, a Lexus, San Diego Police Officer Dunnigan also found that Riley was driving with a suspended driver’s license. San Diego Police Department’s policy is to tow and impound a vehicle after stopping a driver with a suspended license to prevent the driver from driving again. Policy dictates that the police must perform an inventory search of the vehicle. In this case it led to the discovery of two handguns. Ballistic testing confirmed them to be the weapons used in the August 2nd shooting of Mr. Webster. However, this information was unknown by Officer Dunnigan at the time of Riley’s traffic stop.

Police placed Riley under arrest and searched his cell phone without a warrant based on the discovery of the guns and other gang paraphernalia during the vehicle search. Search of the cell phone yielded information indicating Riley was a member of the Lincoln Park gang. The evidence included pictures, cell phone contacts, text messages, and video clips. Also in the photos was a picture of the Oldsmobile in the shooting of Mr. Webster. Riley moved to suppress the cell phone evidence at the trial level. However, the judge permitted this evidence in both the first trial and on retrial. Ultimately, Riley was convicted on three charges and the California Court of Appeal affirmed the judgment.


An argument favor of Riley is smart phones simply contain too much personal information to be legally searched by police without a warrant. The American Library Association contends constitutional protections will be surrendered if police can search the smart phone of every American arrested without a warrant. Half of all adults in the United States own smart phones. Smart phones, the Association argues, reveal the most private thoughts of the average American, containing extensive records of the books read, websites visited, and conversations with friends and family of the owner. If police are able to go through the massive amounts of data stored on most smart phones upon arrest, then police offers will utilize this data in pursuit of aggressive investigation techniques. The DKT Liberty Project adds that smart phones have become a modern repository for thoughts, and often contain intimate and intensely private information. Smart phones are every bit as sophisticated as personal computers. They need to be treated as such and can be thought of as a window into the owner’s mind. Something so personal and extensive cannot be allowed to be confiscated and searched during routine police procedures that do not require a warrant.

The Respondent, the State of California, claim it is necessary for police officers to confiscate cell phones without warrants because they pose a significant threat to officers’ safety. California points to the possibility of devices being rigged to detonate remotely or explode when a specific action is carried out on the phone while in the owner’s possession. California also contends cell phones can be used by their owners to call for assistance, which can cause a potentially immense threat to officers as well as the public. 

Additionally, while the Petitioner views the sophistication of smart phones as reason not to confiscate them, the State warns that smart phones can be used to track their owners, helping those who wish to frustrate the officers’ intentions and assist the owner without the owner having actively called for backup in any way. 

Examination of the phone would allow officers to identify whether the phone has been weaponized or used in a way that might compromise the safety of the officers or the public. California also contends, cell phones can be used to help police officers quickly confirm the identity of their owners, which is often an immediate concern. California claims it is necessary for police officers to confiscate cell phones immediately, without a warrant, in order to preserve evidence before owners delete valuable data.

In this case, the Supreme Court will decide whether cell phones can be subject to warrantless searches incident to an arrest. The Fourth Amendment prevents unreasonable searches and seizures; however, a search incident to arrest has been ruled reasonable. This search has traditionally extended to any objects on an individual or within reach. 

In People v. Diaz, the California Supreme Court ruled police officers can “rummage” through the digital contents of a smartphone during an arrest or traffic stop. Riley argues that while searches incident to arrest are an exception to the warrant requirement, the exception was granted to further the government interests of officer safety and preservation of evidence, neither of which were implicated by the digital contents of the smartphone here. Riley argues that the digital contents of a smartphone do not threaten officer safety because they are not containers which could hold harmful physical objects. 

A cell phone does not need to be searched in order to preserve data, because the data will still be on the phone once a warrant is obtained and steps can be taken, such as the use of a Faraday, to prevent the erasure of data. 

Riley also argues that limiting searches of smart phones to situations where an officer believes that the phone may contain evidence of a crime would not solve these constitutional problems. This limitation, in Riley’s view, would still allow officers to examine the content of cell phones at their discretion if they have a reasonable belief that there is evidence of a crime, and this subjectivity would not prevent violations of constitutional rights.

California counters that United States v. Robinson outlines a clear, categorical rule that allows any item in an individual’s possession at the time of arrest to be subject to search. California contends that this rule stems from the government’s interest in officer safety, and that a large body of cases allow officers to search areas that might present a danger. 

The State argues that over time, the search rule has evolved to allow searches incident to arrest, including the arrestee himself and the area around him. The States further argues that the bright-line Robinson rule was based on concerns for officer safety and the preservation of evidence, and that Riley ignores these two justifications. California argues that even if the rule is not applied broadly here, the cell phone in this case was subjected to a legitimate search because a cell phone can pose a safety threat to officers if it is rigged to remotely detonate a bomb or if it has been used to call for back-up. Furthermore, California asserts that preservation of evidence should be considered here, and that police officers should search cell phones to prevent the remote erasure of data and the deletion of data that is time sensitive.

Riley argues once the police have exclusive control over items they have taken from an arrestee, the items are no longer a safety hazard to the police, and are not in danger of being destroyed by the arrestee. There was no justifiable reason to search his phone without a warrant. 

Riley maintains that the remoteness limitation on searches incident to arrest should apply here because the officer who searched his phone at the station had no reason to do so without a warrant. Further, Riley states that while objects on an individual in police custody can be seized for administrative processing, the search here was investigative, not administrative, and unjustified.

Riley argues that even if searching the digital contents of a cellphone serves a legitimate government interest, such a search is unreasonable because it violates personal privacy to an unprecedented degree. While an arrested individual may be deprived of the privacy interest in his clothes and items on him, it does not allow the government to conduct a search of the personal information on his phone. Information  now contained on cell phones was once contained within the safety and privacy of one’s home. Because modern phones contain more information than could ever be carried before, unbounded searches through that extensive digital record cannot be allowed. 

Furthermore, the information on cell phones implicates First Amendment concerns of free expression and free association, because the search and seizure of expressive materials such as contact lists and phone call records must be particularized in order to avoid the violation of First Amendment rights. Riley argues that it is unreasonable to search personal communications incident to arrest because the search would expose protected communications to scrutiny without the proper justification provided by a warrant.

Jim Harper, Ilya Shapiro and Gabriel Latner, Riley v. California, The Cato Institute (March 10, 2014).  
Robert Barnes, Supreme Court to Decide Case on Police Cellphone Searches, Washington Post (Jan. 17, 2014).  
CERT. GRANTED 1/17/2014
Whether or under what circumstances the Fourth Amendment permits police officers
to conduct a warrantless search of the digital contents of an individual's cell phone seized
from the person at the time of arrest.

No. 13-132
David Leon Riley, Petitioner
Docketed:July 31, 2013
Lower Ct:Court of Appeal of California, Fourth Appellate District, Division One
  Case Nos.:(D059840)
  Decision Date:February 8, 2013
Discretionary Court  
  Decision Date:May 1, 2013
Questions Presented

~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~
Jul 30 2013Petition for a writ of certiorari filed. (Response due August 30, 2013)
Aug 12 2013Waiver of right of respondent California to respond filed.
Aug 15 2013Consent to the filing of amicus curae briefs, in support of either party or of neither party, received from counsel for the petitioner.
Aug 21 2013DISTRIBUTED for Conference of September 30, 2013.
Aug 30 2013Brief amici curiae of Center for Democracy & Technology and Electronic Frontier Foundation filed. (Distributed)
Aug 30 2013Brief amicus curiae of Constitutional Accountability Center filed.
Aug 30 2013Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
Sep 3 2013Response Requested . (Due October 3, 2013)
Sep 27 2013Brief of respondent California in opposition filed.
Oct 16 2013Reply of petitioner David Leon Riley filed.
Nov 20 2013DISTRIBUTED for Conference of December 6, 2013.
Dec 3 2013Record Requested .
Dec 23 2013Record received. California Court of Appeal for the Fourth Appellate District and San Diego Superior Court (1 box)
Dec 31 2013DISTRIBUTED for Conference of January 17, 2014.
Jan 17 2014Petition GRANTED limited to the following question: Whether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights.
Feb 11 2014SET FOR ARGUMENT ON Tuesday, April 29, 2014
Feb 18 2014Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioner.
Feb 19 2014Consent to the filing of amicus curiae briefs, in support of either party or of neither party, rece8ved from counsel for the respondent.
Mar 3 2014Joint appendix filed. (Statement of costs filed.)
Mar 3 2014Brief of petitioner David Leon Riley filed.
Mar 7 2014Brief amici curiae of Criminal Law Professors in support of private parties filed. VIDED. (Distributed)
Mar 7 2014Brief amici curiae of American Civil Liberties Union, et al. filed. (Distributed)
Mar 10 2014CIRCULATED.
Mar 10 2014Brief amici curiae of American Library Assciation, and The Internet Archive in support of Riley and Wurie filed. VIDED. (Distributed)
Mar 10 2014Brief amicus curiae of Constitutional Accountability Center in support of Riley and Wurie filed. VIDED.
Mar 10 2014Brief amici curiae of Center for Democracy & Technology, and Electronic Frontier Foundation in support of Riley and Wurie filed. VIDED. (Distributed)
Mar 10 2014Brief amicus curiae of National Association of Criminal Defense Lawyers, et al. filed. (Distributed)
Mar 10 2014Brief amicus curiae of DKT Liberty Project filed. (Distributed)
Mar 10 2014Brief amici curiae of Electronic Privacy Information Center, et al. filed. (Distributed)
Mar 10 2014Brief amici curiae of National Press Photographers Association, et al. filed. VIDED. (Distributed)
Mar 10 2014Brief amici curiae of Professors Charles E. MacLean & Adam Lamparello filed. (Distributed)
Mar 10 2014Brief amicus curiae of The Cato Institute filed. (Distributed)
Apr 2 2014Brief of respondent California filed. (Distributed)
Apr 9 2014Brief amicus curiae of United States filed. (Distributed)
Apr 9 2014Brief amici curiae of Association of State Criminal Investigative Agencies, et al. filed. (Distributed)
Apr 9 2014Brief amici curiae of Arizona, et al. filed. (Reprinted) (Distributed)
Apr 10 2014Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Apr 18 2014Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Apr 22 2014Reply of petitioner David Leon Riley filed. (Distributed)
Apr 29 2014Argued. For petitioner: Jeffrey L. Fisher, Stanford, Cal. For respondent: Edward C. DuMont, Solicitor General, San Francisco, Cal.; and Michael R. Dreeben, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.)

"Police officers may not confiscate or demand to view your digital photographs or video without a warrant. The Supreme Court has ruled that police may not search your cell phone when they arrest you, unless they get a warrant. Although the court did not specifically rule on whether law enforcement may search other electronic devices such as a standalone camera, the ACLU believes that the constitution broadly prevents warrantless searches of your digital data. It is possible that courts may approve the temporary warrantless seizure of a camera in certain extreme “exigent” circumstances such as where necessary to save a life, or where police have a reasonable, good-faith belief that doing so is necessary to prevent the destruction of evidence of a crime while they seek a warrant."

Held: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has beenarrested.

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