My Phone Is My Castle: Supreme Court Decides that Cell Phones Seized Incident to Arrest Cannot Be Subject to Routine Warrantless Searches

Ricciuti_Mike Dyer_Kathleenby Michael D. Ricciuti and Kathleen D. Parker

Case Focus

On June 25, 2014, a unanimous United States Supreme Court decided Riley v. California, 134 S. Ct. 2473, and held that police may not conduct a warrantless search of the digital information contained in a cell phone or smart phone seized incident to arrest absent exigent circumstances.  Rejecting mechanical application of the prior rule allowing virtually unlimited search authority over items seized at arrest, the Riley Court continued the Supreme Court’s trend of applying core Fourth Amendment principles when defining the scope of constitutionally permissible searches, especially those involving emerging technology.  See Chimel v. California, 89 S.Ct. 2034 (1969); United States v. Robinson, 94 S.Ct. 467 (1973); Arizona v. Gant, 129 S.Ct. 1710 (2009).  The net result is that the Court now requires the government to seek warrants for searches of digital information contained in cell phones absent exigency.

The Facts

In Riley, the Court decided two consolidated cases — People v. Riley, 2013 WL 475242, D059840 (Cal. App. 4 Dist. Feb. 8, 2013), a California Court of Appeal case, and United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), a case out of the First Circuit.  In Riley, the defendant was stopped for driving with expired registration tags.  The police discovered firearms, arrested Riley, and seized his smart phone from his pocket.  They then accessed its stored information and found words, photographs and videos which allegedly linked Riley to a street gang and a gang-related shooting that had occurred a few weeks earlier.  The government charged Riley in connection with the shooting and sought to use the gang-related information from the phone to seek an enhanced sentence.  Riley’s motion to suppress the cell phone evidence was denied, the California Court of Appeal upheld the denial, and the California Supreme Court denied Riley’s petition for review.

In United States v. Wurie, a Boston police officer performing routine surveillance observed Wurie making an apparent drug sale from a car and arrested him.  Incident to the arrest, the police seized a flip-style cell phone from Wurie and noticed that it was receiving calls from “my house,” as displayed on the external screen.  Police opened the phone, accessed the call log, and identified the phone number associated with “my house.”  They located the address that corresponded to the phone number, confirmed that the address was Wurie’s apartment and obtained a search warrant for the location.  The search yielded drugs, drug paraphernalia, a firearm, ammunition, and cash.  As a result of the search, Wurie was charged with drug and firearms offenses.  He moved to suppress the evidence obtained from the search of the apartment on the grounds that it was the fruit of an unconstitutional search of his cell phone.  The motion to suppress was denied by the district court.  A divided First Circuit panel reversed the denial and vacated Wurie’s convictions.  The Supreme Court granted certiorari.

The Riley Reasoning

The key issue in Riley was whether the traditional rule allowing police to seize and search anything found in the possession of the arrestee included data stored on a cell phone or smart phone.

As it had done in prior cases, the Riley Court began its analysis of the issues by looking at the underlying reasons for the search.  The Court explained that police were permitted to search items found on an arrestee because things on an arrestee’s person could be used as a weapon against the police or could constitute evidence that could be destroyed by the suspect.  The Court found, however, that such risks are not present when the search at issue is of digital data on a cell phone, and that rigidly applying a categorical rule permitting the police to search anything found on a suspect upon arrest, including a search of the data stored on a cell phone, made no sense in light of the reasons for the rule.  Although the government raised concerns about the security of the data on a phone — for instance, the risk that information on a phone could be remotely wiped, making its data unsearchable — the Court rejected these concerns as insufficient to outweigh the privacy issues at stake.  Since data on cell phones cannot be used as a weapon against the police and, once the phone is seized, an arrestee cannot himself destroy potential evidence stored on the cell phone, the logic that allows police to search items incident to arrest no longer applies and cannot be used to justify a search of cell phone data.  Significantly, the Riley Court recognized that cell phones are in effect “digital containers” with “immense storage capacity” for private data and, as such, “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse”– items that had traditionally been fair game in searches incident to arrest.  Accordingly, the Riley Court concluded that permitting a search of a cell phone upon arrest extended the logic of prior law too far.

In reaching this conclusion, the Riley Court continued a trend in which the Court has closely reviewed the logic of core Fourth Amendment precedents to determine the legality of a search rather than simply building upon more recent cases interpreting those principles.  For instance, in 2009, the Court decided Arizona v. Gant.  Prior to Gant, lower courts interpreted Supreme Court decisions as permitting police to search the interior of a car after the driver was arrested, even if the driver had been taken out of the vehicle.  In Gant, the Court invalidated that interpretation.  To reach this result, the Court re-examined the core reasoning justifying such search authority — to prevent an arrestee from reaching for a weapon or destroying evidence. The Gant court concluded that once a driver had been taken out of the car and arrested, there was no longer any possibility that he or she could seize anything in the vehicle and destroy it or use it as a weapon, and thus there was no longer any justification for allowing a warrantless search of the car’s interior.

The Upshot

Riley, like Gant, shows that the Court is concerned with stretching categorical rules governing police behavior beyond their core reasoning.  The decision also reflects the Court’s sensitivity to practical concerns in applying existing search and seizure law to new technology.

The immediate upshot of Riley is significant.  Police who seize cell phones incident to an arrest generally need a warrant to search their contents.  The same rule will apply to computers and computer media as well.  This does not mean that cell phones or other digital media are completely off limits to the police absent a warrant.  The Court acknowledged that there may be circumstances that justify an exigent, warrantless search of a cell phone, but such exceptions must be established by the police on a case-by-case basis.

It remains to be seen how Riley will apply to future cases where the government seizes information closely related to cell phone use, such as cell-tower tracking data, which can pinpoint a user’s location even in real time, or non-content information relating to cell phone and email usage which can be searched in bulk and mined for insights into private behavior.  But Riley and the cases that preceded it make clear that the Court is adapting to the times and will not blindly apply law from an earlier age to today’s digital media.

 

Michael D. Ricciuti is a partner at K&L Gates, a member of the BBA’s Criminal Law Steering Committee and a member of the Adjunct Faculty at Suffolk Law School, where he teaches Constitutional Law and Criminal Procedure.  He received his undergraduate degree and law degree from Harvard University.

Kathleen D. Parker is an associate at K&L Gates.  Ms. Parker focuses her practice on general civil and commercial litigation matters and government enforcement matters.  She received her undergraduate degree and law degree from Boston College. 


Any Calls, Texts, or Photos May Be Used Against You: Warrantless Cell Phone Searches and Personal Privacy

Leone_Gerry Freedman_Linn Sylvia_Kathrynby Gerard T. Leone, Linn Foster Freedman, and Kathryn M. Sylvia

Legal Analysis

The world envisioned by the Supreme Court in Chimel v. California, 395 U.S. 752 (1969) – one where physical objects such as spare handcuff keys, drugs, gambling ledgers, and weapons could be found on the person of any arrestee – is now a much different place.  Historically, searches incident to arrest have been justified to prevent escape, the destruction of evidence and to protect the arresting officers from dangerous weapons. Smartphone technology has changed the landscape and offered new challenges for our courts.  In the vast majority of arrests these days, the police locate a cell phone on or near an arrestee, seize it, and seek to search the device pursuant to the search incident to arrest exception to the warrant requirement.  This situation obviously implicates incrimination issues, as well as privacy concerns, because one handheld device can contain enormous amounts of personal information collected over lengthy periods of time, and much or even all of this data might be arguably inadmissible or irrelevant to an individual’s conduct or intent at the time of arrest.  For this reason, courts applying the search incident to arrest doctrine must carefully balance the government’s ability to seize and use personal data of an arrestee to incriminate them, against the risk of allowing an unreasonable intrusion into our personal lives.

This article will provide an overview of the two most recent Massachusetts Supreme Judicial Court (“SJC”) decisions on the issue, and will highlight two cases currently pending before the Supreme Court of the United States.

The SJC has ruled that police can conduct a limited cell-phone search without a warrant pursuant to the search incident to arrest exception.  In both Commonwealth v. Phifer, 463 Mass. 790 (2012) and Commonwealth v. Berry, 463 Mass. 800 (2012), the SJC held that checking the arrestee’s cell phone call history in order to discover evidence of the crime of arrest was acceptable under the search incident to arrest exception to the warrant requirement.  In Phifer, officers viewed the defendant speaking on his cell phone shortly before engaging in a drug transaction.  After police arrested the defendant and a codefendant, the codefendant provided police with his phone number.  The subsequent search of the defendant’s cell phone involved a “few ‘simple manipulations’” to display the recent call logs where police matched several recent calls to the codefendant’s phone number.  In upholding the search, the Phifer court limited its ruling to the facts of that case, holding that when police had probable cause to believe the search of the cell phone would reveal evidence of crime, the search was constitutional.

But Berry presented a different situation.  The police witnessed the defendant selling heroin to a customer from within a vehicle.  Officers arrested the defendant and the customer, and seized their cell phones incident to arrest.  Unlike Phifer, neither officer witnessed either arrestee use his cell phone before or during the illegal transaction.  Still, police reviewed Mr. Berry’s recent call history and dialed the most recent number, correctly presuming that it belonged to the customer.  The SJC stated that this “very limited search” was reasonable due to the police officer’s knowledge that cell phones are used in drug transactions, even if police had no particularized suspicion that either the defendant or the customer had used a cell phone to conduct this transaction.

While the Berry court sought to limit its decision to the facts of the case, the effect is likely to be far reaching, and applied to many other scenarios.  Indeed, the facts present in Berry include 1) experienced officers with knowledge and training in drug transactions; 2) a high crime area; and 3) general knowledge that cell phones are often used in drug transactions.  Such general facts will be present in virtually every drug arrest, and thus every arrestee’s cell phone will seemingly be subject to a “limited” search incident to arrest.  The Berry court did not require any particularized nexus between the officers’ witnessing the use of a cell phone and a target drug transaction, despite a clear opportunity to do so, given the important factual differences between the usage of the cell phone in the Phifer and Berry offenses.

In April 2014, the United States Supreme Court will revisit these issues.  In People v. Riley, No. D059840, 2013 WL 475242 (Cal. Ct. App. Oct. 16, 2013), cert. granted sub nom. Riley v. California,No. 13-132, 2013 WL 3938997 (U.S. Jan. 17, 2014),the Court will consider whether a post-arrest search of the petitioner’s cell phone violates his Fourth Amendment rights. There, police stopped Mr. Riley for having expired vehicle tags.  During the stop, the police learned that he was driving with a suspended license and arrested him.  Pursuant to policy, the officers conducted an “inventory search” of his vehicle and, in the process, found guns hidden underneath the vehicle’s hood.  Officers placed the defendant under arrest and seized his cell phone.  Officers then conducted two warrantless searches of the cell phone’s content—one at the scene during which the officer scrolled through the defendant’s contact list, and one at the police station during which a different officer searched photographs and video clips contained therein.  The cell phone was a “smartphone that was capable of accessing the Internet, capturing photos and videos, and storing both voice and text messages, among other functions,” according  to Mr. Riley’s certiorari petition. Mr. Riley was charged with attempted murder and assault with a semiautomatic weapon, based in part on the contents seized from his cell phone—including infamous gang-members’ names and incriminating photographs—that proved critical to the government’s investigation and charging decision.

Mr. Riley argues in his Petition that “Federal courts of appeals and state courts of last resort are openly and intractably divided over whether the Fourth Amendment permits the police to search the digital contents of an arrestee’s cell phone incident to arrest.  This issue is manifestly significant.”  While the State, in its opposition brief, “acknowledges that there is a growing conflict concerning whether the Fourth Amendment permits law enforcement officers to search the contents of a cell phone incident to arrest,” it argues that the police officers’ search of Mr. Riley’s cell phone did not constitute a Fourth Amendment violation.  In support of its position, the State argues that courts “categorically allow the police to search any item of personal property on an arrestee’s person at the time of his lawful arrest,” if the search was reasonable.

A second case accepted by the United States Supreme Court, United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), cert. granted, No. 13-212, 2013 WL 4402108 (U.S. Jan. 17, 2014), addresses whether the Fourth Amendment permits the government to conduct a post-arrest warrantless search of an arrestee’s cell phone call log.  There, the police witnessed what they believed to be a drug transaction within a vehicle.  Police arrested the defendant for distributing crack cocaine and removed him to the police station.  The officer seized two cell phones from Mr. Wurie and eventually used the personal contacts and telephone numbers to determine his home address.  Officers then obtained a search warrant for Mr. Wurie’s home where they discovered a firearm, ammunition and drug paraphernalia.  The government convicted him of numerous drug crimes and for being a felon in possession.  On appeal, the First Circuit overturned his conviction, holding that the search incident to arrest exception “does not authorize the warrantless search of data within a cell phone that is seized from an arrestee’s person” unless another exception to the warrant requirement applies.

The Solicitor General submitted a writ of certiorari arguing that it is well-settled that “a custodial arrest based on probable cause justifies a full search of an arrestee and any items found on an arrestee, including items such as wallets, calendars, address books, pagers and pocket diaries.”  He further argued that “the cell phone at issue was a comparatively unsophisticated flip phone” and, as a result, this particular case is not suitable for determining the scope of Fourth Amendment rights pertaining to cell phone searches.

The State advanced similar arguments below, and the First Circuit considered and disagreed with each.  As to the argument that police may search any item on the arrestee, the First Circuit held that Chimel does not authorize even a limited warrantless search of a cell phone because such a search is not necessary to preserve destructible evidence or promote officer safety.  The First Circuit also rejected the idea that the particular phone’s storage capacity should be a factor, quoting the Seventh Circuit’s reasoning that “[e]ven the dumbest of modern cell phones gives the user access to large stores of information.”

It would seem that, even if the Supreme Court holds that searches of cell phones incident to arrest are constitutional, there must be a reasonableness standard applied to limit and condition the nature, scope and extent of such searches.  The implication of the upcoming decisions may be far reaching.  As the First Circuit in Wurie recognized, the evolution of technology makes the government’s reach into private data ever more problematic.  Today, individual cell phones act as bank cards, home security surveillance portals, and repositories for intimate details such as personal health information and social security numbers.  Tomorrow, technology will turn another corner, allowing more information to be immediately available to whomever may access a personal cell phone.  As technology evolves, and personal e-data continues to be inextricably intertwined with our everyday lives, the law as it applies to devices that possess such personal information will be critical to the debate over personal privacy and governmental intrusion.

Gerry Leone is a former Middlesex County District Attorney.  He is a partner with Nixon Peabody LLP and conducts internal and governmental investigations for public and private clients.  Gerry also represents individuals and organizations facing complex civil and criminal matters.

Linn Foster Freedman is a partner with Nixon Peabody LLP and is leader of the firm’s Privacy & Data Protection group. Linn practices in data privacy and security law, and complex litigation.

Kathryn M. Sylvia is an associate with the firm and member of the firm’s Privacy & Data Protection team. She concentrates her practice on privacy and security compliance under both state and federal regulations.