It isn’t often that I feel warm and fuzzy toward all nine members of SCOTUS. Today is one of those days. I’ve written several times about the pending cell phone search cases, Riley and Wurie, and have expressed hope that SCOTUS would issue a clear decision that a warrant is required to search a cell phone. Today, SCOTUS issued that decision (here is the Riley decision). The decision was unanimous, written by Chief Justice John Roberts.
For years, police officers in California have been searching electronic devices incident to arrest—first pagers, then flip phones, now smartphones. Officers have been reviewing all the data “incident to arrest,” even after contacting a person for a minor offense. Phones are easily unlocked, passcodes easily defeated. Jaywalking cases turn into strike felony cases. Minor diving offenses lead to officers connecting a seized cell phone to a Cellbrite machine and downloading the entire contents: every contact, text, and photo. Along with a few text messages that may suggest a drug transaction, now the discovery I receive often includes a stack of disks containing the full phone download of every intimate photo, email from a doctor, banking passcodes stored in contacts, and lovers’ quarrels by text message.
This is what happened to David Riley. He was stopped for driving with expired car registration. After searching his car and his cell phone, he was linked (by cell phone data) to a prior gang shooting, and was convicted of attempted murder and sentenced to fifteen years in prison. Some say that’s good police work. Others say they don’t want police looking so easily at the last symptom searched on WebMD.
In favor of the searches, the government argued that cell phone searches fall into the warrant exception designed to protect officers (by permitting searches for weapons) or the exception to avoid destruction of evidence (such as flushing drugs). SCOTUS rejected these arguments, reasoning that phones can be checked externally, without accessing any data, to verify that they are not weapons, and that use of a Faraday bag or removal of the battery can prevent remotely wiping a phone. (As others like Noah Feldman have mentioned, it’s time to invest in Faraday bags.) The government argued that cell phones should be treated like wallets or purses. Chief Justice Roberts rejected the comparison, writing, “That is like saying a ride on horseback is not materially indistinguishable from a flight to the moon.”
As SCOTUS acknowledged, this recognition of the Fourth Amendment will make law enforcement more difficult. Roberts wrote: “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.”
However, phones can still be searched. If officers can articulate probable cause to search a phone, they can seek a warrant and search it. Roberts wrote, “[T]he Court’s holding is not that the information on a cellphone is immune from search; it is that a warrant is generally required before a search.”
The great Jeffrey Fisher (who successfully re-invigorated the Confrontation Clause by arguing Crawford and Melendez-Diaz) has worked his magic again. Here is the link to video of Fisher and California Solicitor General Ed DuMont (who argued the cases against Fisher) outlining their arguments.
“Remember, the Fourth Amendment says that the police and government agents cannot engage in any unreasonable searches, and expresses a preference for obtaining warrants before engaging in any search,” Fisher said. “Mr. Riley argued that the search of his cellphone, therefore, was unreasonable because it unduly invaded his privacy without obtaining a warrant.” Fisher’s argument prevailed in today’s SCOTUS decision.
How do I join the Jeffrey Fisher fan club? I want a bobblehead doll.
Some of today’s coverage of Riley is here: