Today, in Riley v. California, a unanimous Supreme Court held that a warrantless search of data on a cell-phone constituted a violation of the fourth amendment. The full decision is here. https://drive.google.com/file/d/0Bx7x7FRX0wM-NkpPOHRBYlRTalE/edit?usp=sharing.
The Court declared that the immense storage capacity on a contemporary smart-phone is vastly different than other personal effects and implicates a much greater privacy interest. The Court acknowledged that these are mini-computers storing digital versions of physical data (such as thousands or millions of pages) and that if the physical forms of this information were carried around, a warrant would definitely be required to search them. The Court stated that “Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.”
It is a categorical decision. The Court stated “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.”
The Court rejected a proposal allowing officers to search a phone without a warrant if they believe it contained evidence related to the offense for which the individual was arrested. The Supreme Court noted that such a rule would have no practical limit at all. The Court similarly rejected a proposal to allow for warrantless searches to search for information relevant to the crime, officer safety, or identity, as such exceptions would also provide no substantive limitation on the officers. And the Court struck down another proposal that would have allowed for a warrantless search if there was a “pre-digital counterpart" (the Government argued that “if the officers can open a diary to get the owner’s address, they should be able to open a phone to learn its number”) as such a rule would impose too big a burden on the court making that determination.
The Court was not only unanimous, but took efforts to be humorous as well, stating that “These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
When you read the Opinion, you may find yourself shocked by the intellectual dishonesty made by the State of California and the USA in arguments that the Court rejected. For example, the Court refused to adopt the following arguments (for reasons that are apparent):
- Both California and the USA argued that a search of a cell phone could alert officers that confederates of an arrestee are headed to the scene to aid the person being arrested and harm the police. But neither was able to offer any evidence stating that was based on actual experience. (And its hard to imagine that someone would send a text saying that they were about to liberate someone who was being arrested).
- Both California and the USA argued that there were two ways to remotely eradicate cell-phone-data evidence – (1) by having a third party send a signal to the phone that results in erasing data; or (2) having the phone programmed to do so if it leaves a geographical area). The Court rejected these arguments as unsupported, noting that – if they were actual threats – they would require immediate attention to the phone to remedy. More importantly, the Court stated that this can be prevented by severing the phone from its network, and this can be done by removing the battery or placing the phone in an enclosure that isolates it from radio waves (enclosures, such as “Faraday bags” -- sandwich bags made of foil -- are commonplace).
- The USA argued that a search of one’s cell-phone was not materially indistinguishable than a search of one’s wallet, address book, or purse. The Court responded “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.”
- The USA conceded that a warrantless search of a phone to access files stored in “the cloud” would violate the Fourth Amendment, and suggested that such searches could take place when the device was disconnected from its network. The Court rejected this proposal, and noted that the feasibility of this solution was contested by the USA itself with respect to the issue of remote wiping.
This is certainly a huge win, and perhaps an overdue one, for the defense bar. But it does not mean that law enforcement agencies can’t access information on a cell-phone for use in a criminal trial – they just need to get a warrant to do so (and such warrants shouldn’t be hard to get). In other words, if an officer pulls someone over who is allegedly under the influence of methamphetamine, they cannot search the cell-phone to see if there are text messages indicative of sales. But if someone is arrested with meth, scales, ledgers, etc., and a cell-phone, law enforcement officers would likely be able to get a warrant from a judge and then examine the cell-phone.
The Court also expressly left open the exigent circumstances exception, and Law Enforcement officers can still explain to a court why the felt like a warrantless search was necessary, and if they can establish that there was an imminent remote-wipe attempt, the court can hold the search to be valid.
And Justice Alito, in his concurrence, called upon the states to enact legislation that could justify warrantless cell-phone searches, and such statutes likely will be enacted.