Last week, the Supreme Court handed down Riley v. California together with United States v. Wurie, in one of the most significant Fourth Amendment decisions in recent history. The Court faced the question of whether and how to apply the “search incident to arrest” doctrine to cell phones and smart phones that police find in the possession of an arrestee. Different courts had resolved the issue differently (including in the two cases before the Court, Riley and Wurie). The Court held, in a nearly unanimous opinion, that police may not examine the digital contents of an arrestee’s cell phone as part of a search incident to arrest. In so ruling, the Court decisively embraced Fourth Amendment protection for digital privacy in the Twenty-First Century, a welcome and somewhat novel development.
Facts of Riley and Wurie
In Riley, the petitioner, David Leon Riley, was stopped by police for a traffic violation. In the course of the stop, police discovered that Riley’s license had been suspended, and the car was impounded. As a routine part of impounding the vehicle, police conducted a lawful inventory search of the car, during which they found two handguns. Police subsequently arrested Riley for possession of concealed and loaded firearms.
When police arrest a suspect, Fourth Amendment precedents authorize them to conduct a search incident to arrest, a search that includes the person of the arrestee as well as the area within his immediate control. During the search, the officer found and seized a smart phone from Riley’s pocket. In subsequently accessing data from the cell phone, the police learned of Riley’s connection with a criminal gang known as the Bloods and learned as well of Riley’s involvement in a shooting a few weeks earlier.
Riley was prosecuted and convicted of various crimes associated with the shooting (including attempted murder), and his sentence was enhanced because the crimes were committed for the benefit of a criminal street gang. Riley moved to suppress the evidence that police obtained from his cell phone, but his motion was unsuccessful. The California Supreme Court had a precedent from 2011, People v. Diaz, in which that court had approved warrantless searches of cell phone data incident to arrest.
In Wurie, police were conducting surveillance when they observed Brima Wurie apparently making a drug sale from a car. Officers arrested Wurie and subsequently seized two cell phones from him, the search of one of which—a “flip phone” (with accordingly fewer features than a typical “smart phone”)—became an issue in this case. Noticing that the phone had received repeated calls from a source identified as “my house,” police opened the phone and saw a photograph of a woman and a baby, the wallpaper of the phone.
Accessing the call log, looking up the phone number associated with “my house,” and then tracing the phone number to an apartment building, police were able to identify where Wurie lived. Visiting the location, police saw a woman through the window who resembled the woman in the wallpaper photograph. Police then sought and obtained a warrant to search the apartment, where they ultimately found drugs, drug paraphernalia, weapons, and ammunition. Wurie was charged with related offenses and convicted.
Like Riley, Wurie moved to suppress the evidence obtained as the fruit of the police search of his cell phone, and like Riley, Wurie lost the motion. On appeal of Wurie’s conviction, however, the U.S. Court of Appeals for the First Circuit reversed the denial of the suppression motion.
Search Incident to Arrest Doctrine and Cell Phone Data
The legal status of the police officers’ perusal of data on Riley’s and Wurie’s cellular phones turned on whether examining digital data on a cell phone qualifies as a legitimate “search incident to arrest” under the doctrine recognized by the U.S. Supreme Court in Chimel v. California and other cases. As described earlier, the Court has held that police may, as a routine part of lawfully arresting a suspect, search the person of the suspect and the area within the suspect’s immediate control (sometimes called her “wingspan”). The rationale for this authority, under Chimel and later decisions, is twofold: first, a suspect under arrest is motivated to try to frustrate the arrest, by fleeing or resisting, and thus might use weapons that are within her reach and endanger police safety; second, a suspect under arrest is motivated to try immediately to conceal or destroy any evidence that might be accessible to her. Responding to these two risks, the Court has allowed police to search incident to arrest.
In Riley, the Court considered whether application of the search incident to arrest doctrine to the digital data found on cell phones would properly conform to the rationales that animate the doctrine, as applied to non-digital searches. The Court cited three of its precedents as best capturing the existing doctrine governing such searches: Chimel, United States v. Robinson, and Arizona v. Gant.
The three cases provide various principles that help elaborate the proper scope of search incident to arrest. First, the two driving rationales for such searches are clear: the need to disarm someone who is under arrest to protect officer safety, and the need to prevent the arrestee from concealing or destroying evidence within his reach. This means that if, as a general matter, an arrestee will not be able to threaten officer safety or evidentiary integrity in a category of cases, then a search incident to arrest would not be appropriate for that category.
A second principle driving search incident to arrest doctrine, found in Robinson, is that courts will not ask, in each case, whether the police officer who performed a search incident to arrest was specifically justified in suspecting that she might find evidence or weapons on the suspect or within the area immediately accessible to the suspect. The search incident to arrest doctrine is a general doctrine that applies to a class of cases without the need for “reasonable suspicion” or “probable cause” in an individual instance.
A third principle driving the doctrine, articulated in Gant, is that if an arrestee is not able to reach an area at the time of a search incident to arrest, then that area is not legitimately subject to search, with a limited exception for cases in which it is “reasonable to believe” that the passenger compartment of a vehicle will contain evidence of the crime of arrest. That is, although the doctrine applies generally (without the need for articulable suspicion in the particular arrest case), its application is limited to the areas genuinely accessible to the suspect, where the dual rationale for the search could, at least in theory, apply.
Considering this search incident to arrest “trilogy,” as the Court called it, the Justices concluded that searches of digital data contained on a cell phone fail to satisfy the rationales for the search incident to arrest doctrine and therefore do not constitute “reasonable” searches, in the absence of a warrant or some applicable exception to the warrant requirement. Specifically, under the typical “reasonableness balancing” analysis applied when the Court considers departures from the usual “probable cause and a warrant” requirement, the Court found that (1) the search of cell phone digital data is not needed to promote legitimate governmental interests in police safety and preservation of evidence during an arrest, in the way that a search incident to arrest normally is needed to promote these interests, and (2) the search of cell phone digital data represents a major intrusion on the arrestee’s privacy, not comparable to the relatively minor added invasion of privacy ordinarily associated with a search incident to arrest.
The Court explained first that the data on a cell phone do not constitute weapons that an arrestee can use against the police to impede the arrest process, and second, that once police seize a cell phone (a seizure that Riley and Wurie concede is permissible incident to arrest), the arrestee is no longer in a position to conceal or destroy data on the cell phone. Though third parties could potentially initiate a remote data wiping, the Court noted that risks from third parties were never part of search incident to arrest doctrine and that there are, in any event, apparently other, superior ways of handling such risks than blanket authority to examine digital data. And the Court observed as well that the degree to which the search of a cell phone could expose the private life of the arrestee is great and not remotely similar to the degree of privacy intrusion involved in an analogue search of a suspect’s pockets.
Riley a Big Deal
To some degree, the opinion in Riley reads like a foregone conclusion. Of course it makes no sense to authorize police to search what often amounts to all data about an arrestee’s life as a routine incident to a lawful arrest. How could anyone compare looking at a package inside a suspect’s pocket to looking at millions of pages of information about every aspect of an arrestee’s comings and goings, interests, investments, correspondence, etc.?
Yet until this case, it was not clear that the Court would be up to the challenge of drawing a clear line between digital searches and other sorts of searches. The Court in United States v. Jones faced the question whether monitoring a suspect’s car with a GPS device constitutes a Fourth Amendment “search” at all, subject to the warrant requirement. The Court answered the question yes, but a majority relied for this conclusion on the fact that attaching a GPS to the suspect’s vehicle involved a physical trespass, rather than relying on the fact that so much intensely private data was collected. I discussed the oddity of this reasoning in a two-part column at the time, found here and here.
What makes GPS-tracking so invasive has nothing to do with the physicality of attaching (versus not attaching) a small tracking device to someone’s car. It has to do with the enormous amount of highly personal information—and highly revealing combinations of types of information that might not be that revealing in isolation—made possible by the authority to gather moment-by-moment data on a vehicle’s whereabouts.
In a nearly-unanimous decision, in Riley, the Court has now given voice to its recognition of the tremendous potential for privacy invasion that accompanies searches of digital data. The Court specifically says not only that a typical cell phone contains an aggregation of information that allows a viewer to learn information about every feature of the cell phone-owner’s life. But it adds, in an extraordinary statement, that the search of a cell phone may actually be more invasive than the search of a home:
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.” [internal citation omitted]. 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. (Emphasis in original).
This statement is remarkable because the Court has long treated the home as carrying a greater entitlement to privacy than virtually any other venue or situation, an approach that could have made privacy vulnerable whenever people left their homes.
By saying that a cell phone search is potentially more intrusive than a home search, the Court moves away from a counterproductive (and counter-technological) focus on the home. With cell phones in most pockets, a failure to recognize the privacy implications of digital searches could pose a towering threat to people’s privacy, with no constitutional barrier to stand in the way of that threat.
In Riley, the Court took note and even revisited its GPS decision in Jones in a manner that bodes well for future GPS decisions that require no physical trespass. The Justices, in an 8-1 opinion, quoted from Justice Sotomayor’s concurring opinion in Jones, in which she said the following: “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” This language has nothing to do with physical trespass or a Nineteenth Century version of governmental intrusion on privacy. It has everything to do with privacy in the modern age, and it comes out firmly on the side of protecting it under the Fourth Amendment right against unreasonable searches.
