Today in California, an arrest typically means that a police officer will seize any cell phone “reasonably associated with the arrestee”– on a table or in a pocket, purse or backpack– and take all of the following actions: answer incoming calls, scroll through recent texts, answer texts, review photos, and plug the phone into a computer that will defeat password protection and download the entire contents of the phone. All texts, emails, photos, music goes to the police and prosecution. (The defense might eventually get our hands on bits and portions of this “phone dump” in unviewable formats, but that’s a different topic.)
For the upcoming SCOTUS term, many court-watchers expect to see cases challenging these warrantless police searches of cellphones. (See Jeff Welty, USA Today , McClatchy , Scotusblog, and USA Today again with a cool graphic.)
QUESTION PRESENTED: 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.
I used to run piles of motions challenging warrantless cell phone searches, partly because it seemed like a strong Fourth Amendment issue and partly because it was fun to argue that reviewing or intercepting text messages violated state and federal wiretapping laws (and then watch the prosecutor and investigating officer look nervous about whether they’d committed crimes and might be fined).
Then the rotten case of People v. Diaz (51 Cal. 4th 84) came along in 2011. Gregory Diaz was arrested for sale of ecstasy and his cell phone was searched without a warrant, and the California Supreme Court said that it was just fine to search a cell phone “reasonably associated with the arrestee” incident to lawful arrest. Translation: open season on searching cell phones in California. (After Diaz, the California Legislature passed a bill requiring the police to obtain a search warrant before searching the contents of any portable electronic devices, including cellular telephones. Gov. Brown vetoed the bill and kicked the issue back to the courts.)
For two years I’ve been feeling defeated and perhaps lagging in filing as many motions as I should in the fight against warrantless cell phone searches.
A February California case, People v. Riley, followed Diaz in ruling that the defendant’s cell phone was properly searched incident to his arrest, In Riley, San Diego police used photos and videos stored on a smartphone to link the phone’s owner to a criminal gang. Riley didn’t cause much stir and wasn’t even published. Kind of a yawn at the time, honestly. Then, in May, a First Circuit Court of Appeals case (U.S. v. Wurie) ruled a warrantless cell phone search unconstitutional. Suddenly there’s a split on the issue and a much stronger argument for SCOTUS review.
Now I’m fired up, re-energized by the possibility that Jeffrey Fisher of the Stanford Law School Supreme Court Litigation Clinic (yes, the force behind Crawford v. Washington and Melendez-Diaz v. Massachusetts, in which Fisher persuaded the Court to adopt a new approach to the Confrontation Clause) may have the magic touch to get People v. Riley to SCOTUS (docket here). Now this unpublished California case has briefs piling up from Fisher and NACDL and others, and speculation is strong that SCOTUS will review Riley.
“A cellphone nowadays is a portal into our most sensitive information and the most private aspects of our lives,” says Jeffrey Fisher, lead attorney for David Riley. “It’s also a device that is the gateway to your office, health records, bank records.”
In the summary of the brief filed by NACDL in Riley, the role of the modern smartphone is addressed: “The Supreme Court should grant the petition for writ of certiorari because the smartphone has assumed a unique role in modern society. The modern smartphone is a historically unique device with profound societal implications. Distributed computing and cloud data give mobile computing infinite capacity. Smartphone usage is now societally ubiquitous. This case presents the best vehicle for this Court’s analysis. The smartphone in this case, unlike the phone in Wurie, may possess First Amendment overtones affecting the Fourth Amendment analysis. Lower court divisions make this the right time for this Court to consider the issue. The nature and societal use of mobile data compels the result that the Fourth Amendment prohibits the warrantless search of the data of a cell phone incident to arrest.”
“The question is, is there something fundamentally different about electronic devices, given the quality and quantity of information found on them,” said Catherine Crump, a staff attorney for the American Civil Liberties Union.
In Riley v. California, lawyers for the appealing defendant argue that cellphone searches without a warrant are unreasonable and violate the Fourth Amendment. I agree and hold out hope that SCOTUS will too. If you carry a cell phone, this matters to you.