The bad news: the U.S. Supreme Court yesterday threw out evidence that helped convict a gang member and a drug dealer.
The good news: the Court ruled that police must get a search warrant to riffle through your cell phone. The enormous amount of personal data available through even the most basic cell phone deserves some protection from search and seizure, says the Court.
The bonus good news: The Court's ruling in Riley v. California recognizes that the absence of "precise guidance from the founding era" requires judges to think hard about new technology and new situations that Jefferson, Adams, et al. never conceived. Chief Justice John Roberts demonstrates that, in this case, our Justices are up to the task:
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 [Chief Justice John Roberts, Riley v. California, 2014.06.25, p. 9].
The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. Brief for United States in No. 13–212, p. 26. 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...
Cell phones differ in both a quantitative and a qualita- tive sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
...Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson [Riley v. California, pp. 16–17].
In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is [Riley v. California, pp. 21–22].
The Court says case law offers two justifications for searching an arrestee's person and immediate surroundings: protecting the arresting officers and preventing destruction of evidence. Roberts writes that neither the phone nor the digital data it can access pose a threat to police. Arresting officers can secure any potential digital data mostly by handcuffing the suspect and setting the phone out of reach. The Court recognizes that digital data is still subject to encryption or remote wiping, but granting warrantless search authority does little to prevent those risks:
...the opportunities for officers to search a password-protected phone before data becomes encrypted are quite limited. Law enforcement officers are very unlikely to come upon such a phone in an unlocked state because most phones lock at the touch of a button or, as a default, after some very short period of inactivity. See, e.g., iPhone User Guide for iOS 7.1 Software 10 (2014) (default lock after about one minute). This may explain why the encryption argument was not made until the merits stage in this Court, and has never been considered by the Courts of Appeals.
Moreover, in situations in which an arrest might trigger a remote-wipe attempt or an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other pressing matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away. See Tr. of Oral Arg. in No. 13–132, at 50; see also Brief for United States as Amicus Curiae in No. 13–132, at 19. Cell phone data would be vulnerable to remote wiping from the time an individual anticipates arrest to the time any eventual search of the phone is completed, which might be at the station house hours later. Likewise, an officer who seizes a phone in an unlocked state might not be able to begin his search in the short time remaining before the phone locks and data becomes encrypted [Riley v. California, pp. 13–14].
The Court says that if cops are still worried about the remote chance of remote wiping, they have much simpler options than breaching the Fourth Amendment, like turning the phone off, removing the battery, or putting it in a Faraday bag (hey! I just learned something from the Supreme Court!).
As far removed from 1789 as our cell phones are, the Court still manages to put the question of digital data search and seizure into the Founders' context:
Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denounc- ing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886)).
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. 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 [Riley v. California, pp. 27–28].
It's still pretty easy for post-September 11 authorities to get a warrant (15 minutes via iPad, says Chief Justice Roberts on page 26 of the ruling) or to declare the "exigent circumstances" that obviate a warrant. But Riley v. California is a small victory against the police state.13 comments