SCOTUS for law students (sponsored by Bloomberg Law): Searching cellphones
In recent years, the Supreme Court has wrestled with cases involving the technology of video games, GPS tracking, Internet television, and artificial DNA. Now the Justices must tackle the privacy interests in the contents of cellphones.
The Justices will hear arguments on Tuesday in two cases that present the question whether law enforcement officials need a search warrant to examine the contents of a cellphone which they have seized during an arrest.
The case provides the Court with a chance to expound on the scope of searches incident to arrests, an exception to the general Fourth Amendment rule that searches require a warrant or the presence of probable cause. The Court has been divided in the past over the permissible scope of searches incident to arrests. The case also provides the Justices with the chance to wrestle with technology issues; although no longer new technology, the Justices have not faced legal questions about the nature of data stored on cellphones.
The issues in the cases are important to law students studying criminal procedure or in criminal justice clinics. The issues may also be important to students in seminars focused on technology and the law or the Internet and the law.
In one case, Riley v. California, David Riley was convicted of attempted murder, shooting at an occupied vehicle, and assault with a semiautomatic weapon. He was sentenced to fifteen years in prison. A California appeals court upheld the conviction, which resulted from a 2009 traffic stop for driving a car with an expired registration. In the car police found weapons that were connected to a recent gang-related shooting incident. Riley was arrested, and police seized his cellphone. In the phone records, police discovered that a call had been made from Riley’s phone near the location of the earlier shooting and at about the time and date of the shooting. Police also found photos linking Riley to a gang.
The California court ruled that the warrantless search of the contents of the cellphone was valid because the cellphone was “immediately associated” with the arrested individual. Had the cellphone been found later, away from the defendant and after some time had passed, the warrantless search would be questionable, the court said.
In the other case, United States v. Wurie, the U.S. Court of Appeals for the First Circuit threw out the conviction of Brima Wurie. Wurie was arrested in the South Boston neighborhood of Boston in 2007 on suspicion of being a crack cocaine dealer. Police seized two cellphones from him at the police station. When one of the phones received phone calls at the police station, police opened the phone and examined the call log and other information which led them to a home in South Boston, where they seized crack cocaine, marijuana, a gun, and ammunition. After the trial court rejected a motion to suppress evidence resulting from the cellphone search, Wurie was convicted of possessing and selling cocaine and was sentenced to 262 months in prison.
On appeal, the First Circuit ruled that police were not justified in searching the cellphone without a warrant. The appeals court ruled, by a vote of two to one, that the cellphone search could not be justified by the traditional reasons that justify searches incident to arrest: either protecting the safety of police or preventing the destruction of evidence. The First Circuit panel also questioned why police could not take other steps, rather than immediately searching the cellphone contents. For example, the panel noted, to protect data on the phone from destruction or alteration, police could turn the phone off and remove the battery, create a mirror version of the phone contents, or place the phone in what is called a “Faraday bag,” which is lined to prevent electromagnetic signals from reaching the phone.
The cases present the Supreme Court with both practical and doctrinal questions. As a doctrinal matter, the cases fit into a complex framework for analyzing the meaning of the Fourth Amendment which protects against “unreasonable searches” and requires that search warrants should be based “upon probable cause.” The Supreme Court has developed a number of exceptions to the requirement that searches must be supported by a warrant and probable cause. One of those exceptions, at the heart of these cases, is the search incident to a lawful arrest. As the First Circuit discussed, the Supreme Court has long held that warrantless searches may be conducted in connection with a lawful arrest for two reasons: either to protect police officers from, for example, the arrestee reaching for a weapon; or to preserve evidence so that, for example, the arrestee cannot destroy anything that might be important to proving the case.
But how do cellphones fit into this analytical framework? Cellphones do not present a physical threat to the safety of arresting police officers, so that justification for warrantless searches would not seem relevant. Rather, the focus is on whether evidence in the data in cellphones can be easily erased or altered by, for example, remote “wiping” triggered by third parties or through other methods or technology.
The Justices have been divided for decades over other issues related to searches incident to arrest, especially how police should handle cars and other vehicles incident to an arrest. In 2009, the Court ruled in the latest in a series of decisions that police may search a car incident to an arrest when the arrestee is not yet held securely and may be close enough to reach into the passenger compartment of a vehicle. That ruling, by a five-to-four vote, emphasized that exceptions to the warrant requirement should be few and narrow. In that 2009 ruling, now-retired Justice John Paul Stevens warned that the heart of the Fourth Amendment was “concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.”
While the Supreme Court has not considered searches of cellphones before now, the issue arises frequently and has divided state and lower federal courts for the last few years. Among the factors to be considered are how much of an expectation of privacy individuals have in the contents of their cellphones and how easy it is for police to secure a cellphone while obtaining a search warrant. Lower courts have convincingly come out on all sides of these issues.
To make the cases even more interesting, the Court’s handling of important Fourth Amendment issues like these often defies ideological categorization or prediction. The votes in Fourth Amendment cases sometimes cut across liberal and conservative lines. Just recently, for example, the Court in Navarette v. California upheld the validity of a traffic stop, but the five-to-four ruling found Justice Stephen Breyer voting with the more conservative Justices to uphold the stop and Justice Antonin Scalia writing the dissent with Justices Ginsburg, Sotomayor, and Kagan. And in the 2009 car search ruling, Arizona v. Gant, Justices Scalia and Clarence Thomas joined the majority’s narrowing of the authority for warrantless car searches after an arrest while Justice Breyer joined the dissent.
One other aspect of the cases makes them worth watching. The Court is sometimes befuddled by what to make of different forms of technology, either as to how devices actually work or as to how to fit technology into particular legal doctrines, or both.
So put your phones on vibrate and stay tuned.
[Disclosure: Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in this case at the certiorari stage through the Stanford Law School Supreme Court Litigation Clinic, but it is not participating in the case at the merits stage. The author of this post is not affiliated with that law firm.]