Warrantless Cell Phone Searches Going to SCOTUS?

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.


60 years to get to 48%.

Next week, I’ll head back to the legal mothership for an event: Harvard Law School will host Celebration 60 (sixty years of admitting women to the law school).


A new exhibit of photographs , which coincides with Celebration 60, profiles some of the pioneering women who attended in the early years. It makes an impression to stare at a photo of one woman in a class full of men, even more to hear them describe the experience. The library’s exhibit description offers this summary:

“Since women were first admitted to HLS in 1950, female students have slowly but surely carved out a place for themselves on campus. Sixty years of female graduates have transformed the HLS campus and student life. As enrollment of women in incoming classes grew slowly from 2.5% of the first entering class to 48% of the Class of 2015.”

Ruth Bader Ginsburg was there for Celebration 40 during my first year of law school (1993). She was impressive. Kind, candid, witty, gracious, a thoroughly inspiring trailblazer.  Ginsburg graduated first in her class in 1959 (from Columbia after transferring from HLS) and not a single law firm offered her a job. When she told this story in 1993, she’d just become the second woman on the US Supreme Court.

In 2010, I had the pleasure of being in the audience when Diane Sawyer interviewed Ruth Bader Ginsberg and Sandra Day O’Connor at Maria Shriver’s Women’s Conference. When asked how many women should be on the Supreme Court, Ginsburg famously had this exchange (at 1:10) with Sawyer:

“How many women would be enough?” Sawyer asked.

“Nine,” Ginsburg replied with a smile. “There’ve been nine men there for a long time, right? So why not nine women?”

I love that she said that.  However, the number of women entering law school is going down.  A quick non-exhaustive sampling of internet statistics today reveals: The 2012 census reports 50.8% women in the US population. Women outnumber men in 2 and 4 year colleges, masters and doctoral programs.  In contrast, from an all time high of 50% in 1993, enrollment of women in law schools dropped to 46.8% in 2011.

These numbers must correlate to many factors including the economy, but what about the impact of evolving concepts of “career” for women? Can women evaluating careers imagine satisfying lives in legal practice? Doesn’t that impact how attractive it seems for women to choose law school?

This year, the Celebration 60 program brochure is filled with women who have excelled in many phases of “legal careers.” They have moved in and out of courtrooms, baby rooms and classrooms. They have made government policy and written books, become CEOs and judges. Twenty years ago the discussion of women in law was quite different.  In the era of “breaking the glass ceiling” the message seemed (to me) to be: knock down the door, get in there and excel–never let up!  Those first generation feminist trailblazers fought like hell to throw open the doors and, as the second generation of working women, we damn well better walk in there and wow everyone. There was little talk of work-family-life balance or “pauses” in careers.

Today, the internet and bookstores are saturated with writing about leaning in, leaning out, opting in, opting out. The conversation is more realistic and more complicated.

I’ve been a public defender for fourteen of the seventeen years since I graduated in 1996. Right in the middle of the seventeen years, I didn’t practice law for three years. I “paused” and spent time with my family and other pursuits. My belief that public defenders are superheroes and there is no higher calling never wavered, but the transitions in and out of practice were not smooth.  I had to quit my job in one county, take piles of flack for not being a “true believing career PD” (whatever that is), and start over again in another county when I returned.

I’d love to hear from PDs in offices with sabbaticals, extended leaves,  part-time job shares and other creative strategies to increase retention and morale. Too often these creative ideas are characterized as incompatible with trial work. I look forward to hearing some big minds throwing themselves at the career evolution topic next week, and will report back.

After all, 48% is progress, but we’re not there yet.

New DNA technology offered in NY murder case

As a general principle, I believe that the accuracy of criminal justice outcomes increases as forensic science advances. However, new or novel methods and technologies shouldn’t be rushed into court prior to full vetting.  The post-conviction exoneration cases reveal that unreliable forensic evidence is a primary cause of wrongful conviction.  Appropriate scrutiny at the trial stage will reduce this problem.

Each new forensic method/technology needs to be reviewed and validated before being admitted as trial evidence.  The vetting process should be transparent and open, not secretive. I have had the experience of receiving stacks of computer generated “findings”  or “results” from a prosecutor, asking for the software or methodology that generated the records, and getting the reply “it’s some kind of proprietary software .”  In such situations, we are asked to accept technology without being able to question how it works.

True Allele, a new computer-assisted technology is being offered as prosecution evidence in a New York murder case. This DNA mixture analysis uses mathematical formulas to pinpoint individual human DNA on an item that may have been touched by many people.

However, the software prosecution expert Perlin uses “is largely secretive and needs more vetting by independent scientists.” Further, “since 2004, the New York State Police has paid $3.32 million to Perlin’s company, Cybergenetics.” http://ow.ly/oXRqM

This technology cannot be offered as accurate while the software remains secret. As stated by UC Irvine professor of criminology William Thompson: “there needs to be consideration by independent scientists on whether the method has been adequately validated.” http://ow.ly/oXRqM

Post-conviction lessons for a trial attorney

A trial level public defender can constantly learn from post-conviction innocence cases. The innocence movement is uniquely situated to expose wrongful convictions of the innocent, often through DNA evidence which identifies the real perpetrator.

The exoneration cases expose structural flaws in the criminal justice system and provide evidence to advocate for reform. In other words, they help answer these two important questions: What keeps causing wrongful convictions? How do we prevent convictions of the innocent?

Here are the leading causes, according to The Innocence Project:

IP contributing_causes_225

Here’s how these factors cause wrongful convictions (graphic from the awesome San Francisco Public Defender’s Office):

causes wrongful conviction

More to come on each of these causes of wrongful conviction, especially my frequent focus, junk science:

•Eyewitness Misidentification

•Unvalidated or Improper Forensic Science

•False Confessions / Admissions

•Government Misconduct

•Informants or Snitches

•Bad Lawyering <—-See that right there on the list? That’s disturbing.

Structural reform is sometimes slow.  While policy makers fight for legislation, our pending criminal cases are making their way through trials and appeals, in the imperfect system we have right now.  We are on the front lines when the prosecutor engages in misconduct or tries to introduce evidence of a suggestive identification, a coerced confession, a sleazy snitch, or junk science.  As trial attorneys, we need to be vigilant in litigating the hell out of these issues to prevent wrongful convictions from occurring in the first place.