Symposium: A whole lot of Wurie: Information acquisition and the Fourth Amendment

Anthony S. Barkow and Eric Del Pozo are attorneys at Jenner & Block LLP

In simplest terms, the Fourth Amendment protects individuals from unwarranted and unreasonable government intrusions on privacy.  Yesterday’s rulings in the warrantless cellphone search cases Riley v. California and United States v. Wurie reveal a Court that continues to grapple with the importance to the Fourth Amendment of the amount of information accessible to law enforcement in a search.  The Riley/Wurie decisions suggest a subtle shift in focus away from any provable injury inflicted on the individual to the scope, and potential for law enforcement misuse, of the personal data subject to acquisition.  It seems that in the digital age, the Justices’ views on the Fourth Amendment are increasingly as informed by the point of view of the observer as that of the observed.

Riley and Wurie presented a straightforward, common question: “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”  In Riley, police stopped the defendant for driving with an expired registration and soon discovered that his license had been suspended.  A search of the defendant’s car turned up loaded firearms.  After his ensuing arrest, police searched the defendant’s cellphone and found photos and videos potentially linking him to gang activity, including a shooting, for which he was later charged.  In Wurie, two cellphones were taken from a defendant who was arrested on suspicion of selling drugs.  At the police station, one of the phones received repeated calls from a number identified as “my house”; via the call log, police were able to divine the caller’s phone number and eventually her address, from which they recovered large quantities of drugs and a firearm attributed to the defendant.  In neither case did police obtain a warrant before searching the phones.

A unanimous Court held that evidence gleaned from these warrantless cellphone searches was properly suppressed in Wurie and that it should have been excluded in Riley.  Applying basic Fourth Amendment principles, the Court balanced the nature of the government interests at stake against the extent of the intrusions and concluded that a cellphone search by law enforcement, absent demonstrated exigency, requires a warrant.  The Court dismissed police concerns that, in the time it might take to secure a warrant, cellphones could remotely be “wiped” or have their data encrypted, and it further noted that an inability to search a cellphone should not endanger officers’ immediate safety.

As for the level of intrusion, all nine Justices apparently deem it inordinately invasive for police to sift through a cellphone – even if much of the same information could be obtained by non‑digital means.  Per the Court, “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”  The Court aptly characterized so-called smartphones as minicomputers, with “immense storage capacity.”  It then announced that this storage capacity brings with it privacy consequences:  through a combination of photos, videos, text messages, call logs, browsing histories, and the like, police may (if so desired) reconstruct an individual’s entire private life, creating a sort of full-fledged avatar or iPerson.  An unbridled cellphone search, the Court concluded, may be even more intrusive than ransacking a suspect’s home.

Riley and Wurie are the latest chapter in the Court’s evolving, if often implicit, take on the constitutional relevance of the amount and utility of information accessible in a search.  The decisions partly answer a question left open in United States v. Jones, the warrantless GPS tracking case:  Does the fact that officers may lawfully do something without enhanced technology (and without a warrant) mean they can do the same thing, albeit more easily and comprehensively, with enhanced technology (but still without a warrant)?  Or might the breadth of data potentially obtained using modern technology implicate the Fourth Amendment?  (Of course, we know that if police generally cannot do something without a warrant, such as barge into a suspect’s home to see if he is growing marijuana, the mere use of technology – e.g., a thermal imaging device – should not be able to sidestep the Fourth Amendment.)

Obviating these tough questions, a majority of Justices in Jones held that affixing a GPS tracking device to a suspect’s car was a physical Fourth Amendment “search,” presumptively requiring a warrant.  Relevant to the cellphone inquiry, however, four concurring Justices would have reached the same outcome in Jones, but on different grounds.  Despite that a person’s public movements have generally been held to lack privacy protection, these Justices (in an opinion by Justice Alito) reasoned that expectations of privacy may change with technology and that continual GPS monitoring in itself could violate privacy rights by allowing police to track a person’s every whereabout over long stretches of time.  Although endorsing the majority “trespass” view, Justice Sotomayor conveyed these same privacy concerns in a separate concurrence, but left their ultimate consideration for another day.  Her Jones concurrence was cited approvingly in Riley/Wurie – after all, many smartphones collect and store a user’s location information and are otherwise GPS-equipped.

Even recently, however, the Court has not always endorsed a more-is-dangerous approach to the Fourth Amendment.  In Maryland v. King, the Court upheld the warrantless taking of DNA samples from suspects arrested for serious crimes, given the minimal nature of the intrusion (usually a cheek swab) and the significance and accuracy of DNA identification as an investigatory tool.  This was despite that, as a dissenting Justice Scalia put it, “the brave new world of instant DNA analysis” – its utility as a crime-solving tool aside – was akin to “a genetic panopticon” and that such putatively de minimis searches might lead, down the road, to “a national DNA database.”  Foreshadowing the Court’s observation in Riley­/Wurie that disdain for general searches was “one of the driving forces behind the Revolution itself,” the dissenters in King doubted “that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Read together, these decisions reveal the Justices’ discomfort with the large swaths of information available through just a little bit of technology.  In Riley/Wurie, the Court emphasized that most people cannot lug around all of the photos, mail, and reading material contained in a smartphone, nor would anyone likely want to do so.  Likewise, manually recreating long-term GPS tracking would require a multitude of dedicated officers to forgo other investigative work – maybe legal, but also perhaps impractical in a large-scale investigation and a world of limited resources.  (Needless to say, creating someone’s DNA profile without a sample would be impossible.)

Employing smartphone searches and GPS technology, however, law enforcement can easily corral data of a depth and with a speed previously unknown.  It is the potential for mischief, rather than the specific intrusion at issue, that may well be guiding the Court’s decisions.  Thus, the desire for bright lines.  In Wurie, for instance, the police merely identified someone who had repeatedly called a suspected drug dealer’s antiquated “flip phone,” which then led police to the defendant’s cache of drugs, a discovery quite germane to the crime of arrest.  Even that went too far, held the Court.

It will be interesting to note what, if anything, the Court may say about the legality of bulk telephone metadata collection in the name of national security.  That individuals have no reasonable expectation of privacy in the phone numbers they dial, which are willingly disclosed to phone companies, has been settled law for decades.  Federal trial courts are split on whether collection of otherwise unprotected metadata in relatively large – or, in the words of one district judge, “breathtaking” – amounts violates the Fourth Amendment.  The Court denied direct review of one such decision this past April.  (The Court granted certiorari in an unrelated national security surveillance case a couple of years ago, but ordered the case dismissed due to the plaintiffs’ lack of standing.)  The balance of public interest against private intrusion in national security investigations may tilt differently from that in other cases, though.  Even the four concurring Justices in Jones expressed no view on the validity of “prolonged GPS monitoring in the context of investigations involving extraordinary offenses.”

It also remains to be seen just how much a warrant requirement will (or would) hamper law enforcement in any of these situations.  But for now we know that, in the case of a smartphone retrieved from a suspect’s pocket, the breadth of information accessible to law enforcement implicates overriding Fourth Amendment values.  For a GPS tracking device affixed to a suspect’s car, it might.  For a DNA swab of a suspect’s cheek, however, it does not – in fact, the vast utility of DNA data as an investigatory tool seemingly supports the constitutionality of its warrantless acquisition.  And with respect to the dialed numbers appearing on all of our phone bills every month, time alone may tell.