Stephen A. Miller and Kristy Z. Miller ()
Throughout its history, the U.S. Supreme Court has faced the difficult task of reconciling traditional notions of privacy with evolving species of technology. The latest fault line was confronted at oral argument Tuesday. [See Legal affiliate The National Law Journal's coverage of the arguments on page 4.] On that day, the court considered two cases addressing what level of privacy one can expect in data stored on a cellphone.
Both cases—Riley v. California, No. 13-132, and United States v. Wurie, No. 13-212 —concern warrantless searches of cellphones incident to a lawful arrest. The key difference between the two cases is the amount and nature of data stored on the two seized phones in question. The “flip phone” technology in Wurie can only hold a limited amount of information, but Riley involves a smartphone capable of accessing the Internet and holding a wealth of personal information.
Riley v. California
David Leon Riley participated in a drive-by gang shooting in California. Weeks later, Riley was pulled over in a car with expired registration tags. Before the police impounded the car, they conducted an inventory search to identify the property in the vehicle when it entered police possession. During the search, police discovered two guns, and Riley was arrested for possession of the firearms.
Riley had his smartphone in his pocket when he was arrested. Under the search-incident-to-arrest exception, the police officers searched Riley and seized his cellphone. Police searched the device and discovered photographs of Riley making gang signs. They also found pictures of the car involved in the gang shooting, and were able to trace his calls to known gang members.
The data found on Riley’s cellphone was presented to a jury, and he was convicted of charges related to the shooting. He appealed, arguing that the evidence from his phone was obtained in violation of the Fourth Amendment and should be suppressed. The California Court of Appeals disagreed and upheld his conviction.
United States v. Wurie
Brima Wurie was arrested after a police officer witnessed him participate in a drug transaction. Wurie’s phone was seized incident to his arrest. While at the police station, his phone began to ring. The police were ultimately able to trace the call and obtain a warrant for the caller’s address. They recovered assorted weapons and drugs.
Wurie moved to suppress the evidence obtained from his cellphone. The trial court denied the motion, but the U.S. Court of Appeals for the First Circuit reversed. The court ruled that certain post-arrest searches are questionable because they neither protect arresting officers nor preserve destructible evidence. Ultimately, the court held that police cannot perform warrantless searches of cellphones unless specific exigent circumstances exist, such as the destruction of evidence or a bomb threat.
The Arguments in Wurie and Riley
Arguments in both cases revolve around the same theories. The defendants in both cases argue that the type of information on a cellphone—videos, text messages and photos—is much more private and sensitive than any other information an arrestee would carry on his person. Riley even makes the argument that searches of cellphones are the modern equivalent of the type of searches the framers of the Constitution were especially concerned with—general warrants allowing officers to “rummage through people’s homes and offices for whatever incriminating items they might find.”
Defendants in both cases argued against allowing even limited searches. They argued that a limited search is not practical while officers are “in the field” and still allows an unacceptable invasion of privacy. That argument is only more powerful in the context of smartphones, which contain so much more data. Given the amount of data stored on smartphones, an officer could always reasonably believe evidence of a crime might be found within the phone. Application of that standard would, in essence, constitute blanket permission to search smartphones without a warrant.
In contrast, the government in both cases has argued that there is no need to depart from traditional Fourth Amendment jurisprudence. Police officers have traditionally been allowed to search objects found on a lawfully arrested individual. A phone, even a smartphone, contains information similar to wallets, address books and other personal papers that have traditionally been subject to warrantless searches. In addition, the government argued that creating new rules for changing technology is inefficient, as technology will undoubtedly continue to evolve, and the court will always be left playing catch up.
The government also disagreed with the defendants’ assertion that cellphones pose no threat to officer safety. Cellphones may remotely trigger weapons nearby or could be used to alert associates, who may try to free the arrested individual. The government notes that, on today’s smartphones, a message does not even need to be sent for others to be able to track your location. Without inspecting the phone, the police would not know if it had evidentiary value or was a safety concern. Furthermore, the ease at which evidence could be deleted or remotely wiped from a phone also weighs in favor of allowing immediate search and seizure. Password locks and remote access could remove all data from a phone if it is not saved immediately.
Ultimately, the government argues that the search of a cellphone incident to arrest should be lawful if the officer has an objectively reasonable basis to believe that the searched areas of the phone might contain information related to a legitimate law enforcement interest—namely, discovering evidence, identifying the suspect, and/or protecting officer safety.
The court’s decision to grant two cases in the same area suggests the outline of a compromise position. The court may very well allow warrantless searches in the cases of flip phones, because the limited data stored in those devices is more akin to a wallet and other items whose warrantless searches have been endorsed. Smartphones are a different animal, and it seems likely that at least a plurality of justices would refuse to allow warrantless searches of those devices because of their vastly expanded data storage and the resulting way in which many people use the devices to monitor or manage so many aspects of their daily lives.
Stephen A. Miller practices in the commercial litigation group at Cozen O’Connor’s Philadelphia office. Prior to joining Cozen O’Connor, he clerked for U.S. Supreme Court Justice Antonin Scalia and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.
Kristy Z. Miller practices in the New York City office of the firm’s commercial litigation group. She received her J.D. from Drexel University School of Law and a B.A. from Saint Joseph’s University.