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Court takes on cellphone privacy for arrestees: In Plain English

It was a series of events straight out of the children’s book If You Give a Mouse a Cookie – the Law and Order edition.  The storyline goes something like this:  If you are driving a car with expired tags, the police might pull you over.  If they do, they will ask to see your driver’s license.  When you give it to them, they will run a computer check and learn that it has been suspended.  So they decide to impound the car.  But before they tow the car away, they search it.  When they search it, they discover two handguns under the hood, so they arrest you.  When they arrest you, they take your smart phone.  When they take your smart phone, they read your text messages.  When they read the messages, they see texts which suggest that you might be a member of a local gang.  Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.  

At your trial, you ask the judge to bar the prosecutors from introducing the evidence obtained from your phone.  But the judge rejects that request, ruling that the police could search your phone as part of the process of arresting you – a rule known as a “search incident to arrest.”  So the evidence from your phone comes in at your trial, and – even though none of the four eyewitnesses that the prosecutors call can identify you as one of the shooters – you are convicted of attempted murder and assault with a semi-automatic firearm.  And because of the evidence linking you to a gang, the seven-year sentence that you would have gotten is increased to fifteen years to life.

The state courts reject your appeal.  They decide that your case is governed by a recent decision of the California Supreme Court, which held that that the “search incident to arrest” doctrine allows police to thoroughly search an arrestee’s cellphone.  So you ask the U.S. Supreme Court to weigh in, which it agrees to do.  This is the story of David Riley, the California college student in whose case the Court will hear oral arguments tomorrow.  Let’s talk about Riley’s case, as well as that of Brima Wurie, the defendant in the other cellphone privacy case tomorrow, in Plain English.

In his briefs at the Supreme Court, David Riley urges the Court to overturn the decision below.  He warns that a ruling in the state’s favor could sweep broadly, affecting the thousands of people who are arrested every day in the United States — often for offenses as trivial as jaywalking that don’t ever result in convictions.  Allowing police to search smart phones whenever they arrest someone would be a serious invasion of privacy, he says, because so many of us keep so much private information on them.  Indeed, Riley adds, this is exactly the kind of “general search” – looking through people’s homes and offices in the hope of finding evidence of a crime, even if the police didn’t have any real reason to believe that one had been committed – that the Framers of the Constitution were trying to prevent when they drafted the Fourth Amendment.

Turning to more specific legal arguments against allowing cellphone searches without a warrant, Riley contends that, of the two rationales for allowing searches after someone is arrested, neither justifies the search in his case.  First, although police can search an arrestee for weapons that could be used to harm them, smart phones only contain things like texts, emails, photos, and videos, all of which “are categorically incapable” of being used as weapons.  Second, once police have the smart phone, there is no danger that the arrestee can destroy any evidence that it might contain:  during the time that it takes police to get a warrant, they can prevent someone else from accessing the phone remotely by putting it in a Faraday bag, which is designed to block cellular, WiFi, and other signals from reaching the phone.

For its part, California tells the Supreme Court that there are good reasons to allow searches incident to arrest, including searches of smart phones:  such searches help to protect police officers, identify arrestees, and preserve evidence.  The state acknowledges that the searches which accompany arrests may result in an invasion of the arrestee’s privacy, but it characterizes that loss of privacy as a by-product of the arrest itself.  Using a bright-line approach that allows police to search smart phones whenever they arrest someone, the state argues, will give police officers “clear guidance and a practical rule” to use out in the field.

But even if the Court were to adopt a narrower rule, the state contends, the search of Riley’s smart phone is still constitutional because police were looking at the phone as part of their investigation into the crime for which he was arrested – carrying concealed guns.  And, it continues, there is no legitimate reason to treat cases involving cellphones any differently from cases involving, for example, wallets or address books, simply because someone might opt to keep more information on his smart phone than he might carry around in some other form.  The state concludes by urging the Court to proceed cautiously, observing that “new technology may affect the Fourth Amendment analysis in complex and unforeseeable ways.”

Riley pushes back against the state’s fallback arguments, telling the Court that it’s not enough to allow police to search a cellphone just because they believe it contains evidence that the phone’s owner committed the crime for which he was arrested.  Smart phones contain so much information that the arresting officer could always say that he thought he might find relevant evidence on the phone.  And even if, as a general rule, police can search smart phones as part of making an arrest, Riley argues that he should still win because police searched his phone well after his arrest, demonstrating that they still have plenty of time to get a warrant.

In the second case scheduled for oral argument tomorrow, that of Massachusetts resident Brima Wurie, the Justices will take a technological step backward, to consider the constitutionality of a search involving an older-model “flip” phone.  Wurie was arrested after police officers saw him sell crack cocaine from his car.  The officers took Wurie to the police station, where they took cash, keys, and two cellphones from him.  Shortly after his arrival at the station house, police officers noticed that one of Wurie’s phones had received several calls from a contact identified as “my house.”  Police officers obtained the number associated with the “my house” contact from the phone; they then used the number to locate the address associated with the telephone number.  Because Wurie had told them that he lived at a different address, the police officers were suspicious that a stash of crack cocaine was hidden at the “my house” address.  So the officers went to that address, where they saw Wurie’s name on a mailbox and a woman whose picture appeared as the wallpaper on Wurie’s phone.  After obtaining a warrant, they searched the apartment, where they found – among other things – crack cocaine, marijuana, cash, and guns.

At his trial in federal court, Wurie asked the judge to exclude the evidence from his apartment, arguing that it had only been discovered through the unconstitutional search of his cell phone.  But the judge declined to do so, and Wurie was convicted on charges that included distributing crack cocaine and being a felon with a gun and ammunition, leading to a sentence of 262 months in prison.

Wurie appealed his conviction to the U.S. Court of Appeals for the First Circuit, which ruled in his favor and threw out his convictions.  It held categorically that police should never be able to search the contents of an arrestee’s cellphone without a warrant.  The government asked the Supreme Court to step in, which it agreed to do earlier this year.

The federal government urges the Supreme Court to reverse the lower court’s decision and allow police to search an arrestee’s cellphone without a warrant.  It has long been established, the government contends, that police don’t need a warrant to conduct a “full evidentiary search” of an arrestee and any items on his body – including cell phones.  These searches are permitted, the government explains, because someone who is arrested has lower expectations of privacy than the rest of us.  In the government’s view, there is no reason to carve out an exception to this rule for cellphones, which are “particularly likely to contain evidence of wrongdoing and to help law enforcement officials identify suspects they have apprehended.”  But in any event, searches incident to arrest are essential to preserve evidence, because the contents of a cellphone can be erased even after a suspect is arrested; they can also give police some advance notice if, for example, the arrestee’s compatriots are headed to the scene of the arrest.

Like California, the United States proffers a fallback argument, telling the Court that even if it does not establish a categorical rule allowing police to search cellphones without a warrant, it should at a minimum allow police to search a cellphone when they believe the phone contains evidence of the crime for which an individual is being arrested.  This would be an easy rule for police officers to follow, the government suggests, and it would address the concern that police might make arrests for trivial offenses just so that they can then go on a fishing expedition in the arrestee’s phone.  And the search in Wurie’s case passes this test because it was very narrow:  the police officers merely used the call log to determine Wurie’s actual address.

Wurie counters that his preferred rule – the First Circuit’s categorical ban on searching cellphones without a warrant – is an easy one for police to administer and follow.  It has the added advantage of balancing the competing interests of the police (who want to obtain evidence) and the arrestee (who wants to preserve his privacy):  all that police have to do is take the arrestee’s cellphone and hold on to it until a judge decides whether to issue a warrant to search it.

Wurie dismisses the government’s argument that the mere fact of arrest, and the resulting loss of privacy, justifies a warrantless search of an arrestee’s cellphone.  To the contrary, he contends, officer safety and preservation of evidence are the only rationales to justify a warrantless search incident to arrest.  Much like Riley, he maintains that neither of those concerns is present here:  looking at the contents of a cellphone won’t do anything to ensure officer safety, and police can take measures to prevent the files on a cellphone from being deleted until a judge can issue a warrant.

How are the Justices likely to react to these arguments?  Their natural instincts may well tell them to do exactly what California has urged them to do:  proceed slowly and cautiously, given the giant leaps in cellphone technology that could come in the next few years.  But at the same time, they granted review not only to decide the two cases before them tomorrow, but also to provide a road map to govern other cellphone searches in the months and years to come.  For a majority, will the desire to come up with a clear, law-enforcement-friendly rule trump privacy concerns, or will they ultimately decide to balance the two sets of concerns with a narrower rule that allows police to search cellphones when they have a good reason to believe that the phones contain evidence of the specific crime for which someone is being arrested?  Will it matter that Brima Wurie had an old “flip” phone, while David Riley had a newer smart phone?  We’ll have a much better idea by tomorrow afternoon, and we will report back in Plain English.

[Disclosure:  Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to David Riley before the Supreme Court granted review in the case, but he is no longer participating in the case.  In any event, I am not affiliated with the firm.]

Recommended Citation: Amy Howe, Court takes on cellphone privacy for arrestees: In Plain English, SCOTUSblog (Apr. 28, 2014, 10:17 PM),