David C. Newell
When last we chatted, the Court of Criminal Appeals had held that people retain an expectation of privacy, albeit diminished, in their cell phones after those phones are collected with other personal belongings during the booking process.1 The Court did not decide whether the search-incident-to-arrest exception to the warrant requirement would justify a search of the contents of the phone, but the Court did observe that the United States Supreme Court had already granted review of the issue in two cases.
Well, police and practitioners did not have to wait long for the resolution to that issue. In Riley v. California, the United States Supreme Court held quite categorically that the warrantless search of a cell phone was not justified for officer safety or to prevent the destruction of evidence. And the only potential surprise in the opinion was not the result; rather, it was the vote count. In a virtually unanimous opinion, the United States Supreme Court answered the collective questions of law enforcement about searches of cell phones with, “Get a warrant.”
A tale of two cell phones
To decide the issue, the United States Supreme Court combined two different cases, each with different levels of technology and intrusion. In the featured case, California police stopped David Riley for expired registration and arrested him for driving with a suspended license. Police searched Riley incident to arrest and found a smart phone in Riley’s pants pocket.2 Based upon Riley’s possession of items associated with the Bloods street gang, the officer accessed information on the phone and saw the abbreviation for Crip Killers in either texts or the contact list. Two hours after the arrest, a detective specializing in gangs went through the phone at the police station looking for gang videos and pictures of gang members with guns. He found a picture of Riley standing in front of a car that had been involved in a shooting a few weeks earlier. Police ultimately charged Riley with that shooting, and Riley moved to suppress the evidence seized from the cell phone. The California Court of Appeals affirmed the conviction, holding that the Fourth Amendment permits a warrantless search of cell phone data incident to arrest so long as the cell phone was immediately associated with the arrestee’s person.
The undercard case involved more dated technology and less police intrusion. There, police observed Brima Wurie make an apparent drug sale from a car. He was arrested and taken to the station. There, police seized two cell phones, one of which was a flip phone, from Wurie’s person.3 The flip phone kept receiving calls from a source identified as “my house” on the phone’s external screen. The police flipped the phone open and saw a picture of a woman and a baby set as the phone’s wallpaper. The police pressed one button on the phone to access its call log, and then another button to determine the phone number associated with the “my house” label.4 They next used an online phone directory to trace that phone number to an apartment building. At the building, the officers observed Wurie’s name on the mailbox and a woman in the window who resembled the woman on the phone’s wallpaper.5 The officers secured the apartment, got a search warrant, and found 215 grams of crack cocaine, marijuana, drug paraphernalia, a firearm, ammunition, and cash inside. Wurie moved to suppress, and a divided panel of the First Circuit Court of Appeals held that the search violated the Fourth Amendment. By granting review in both of these cases, the United States Supreme Court perfectly positioned itself to craft an elegant and nuanced opinion that could apply to the broadest range of issues attendant to cell phone searches incident to arrest without arbitrary line-drawing.
“Get a warrant.”
In an ostensibly unanimous opinion, the United States Supreme Court held that the searches in each case were unreasonable without a search warrant.6 To those who had been following the issues and the cases, this result was not as surprising as the broad agreement among the members of the Court. Only Justice Alito drafted a separate opinion, and that was a concurrence.7 No one dissented.
Writing for the Court, Chief Justice Roberts first set out the rationale behind the search incident to arrest exception to the warrant requirement. A search incident to arrest is justified to protect officer safety and prevent the destruction of evidence. However, Justice Roberts acknowledged that the Court had held in United States v. Robinson that there was no need for a case-by-case adjudication of whether the officer actually had any basis to be concerned for his safety or that evidence would be destroyed.8 Rather, the Court had held that a search incident to arrest required no additional justification because a custodial arrest of a suspect based upon probable cause rendered any subsequent search of items closely associated with the suspect as reasonable under the Fourth Amendment. And yet, in Arizona v. Gant the Court re-examined search-incident-to-arrest justification on a categorical basis (rather than a case-by-case adjudication) where its application to a car would have untethered the rule from the justifications underlying the exception. That is pretty much what the Court did in this case as well, categorically removing a particular “effect” from the search-incident-to-arrest exception to the warrant requirement.
First, Chief Justice Roberts explained that digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.9 Additionally, he rejected the argument that it might ensure safety in more indirect ways, such as providing police access to information about the defendant’s friends who might be headed to the scene. According to Justice Roberts, as legitimate the interest in officer safety may be, this indirect danger was too speculative to warrant an across-the-board exception. Such concerns are better addressed on a case-by-case basis under the exigent circumstances exception to the warrant requirement.
Second, the possibilities of remote wiping and data encryption also did not justify an across-the-board exception to the warrant requirement. There was little reason to believe that either problem was prevalent as briefing revealed only a couple of anecdotal examples of remote wiping. Moreover, it could be prevented by either turning off the phone and removing the battery or by placing the phone in a sandwich bag made of aluminum foil (a “Faraday bag”) to interrupt the signal. And again, if police are truly confronted with a now-or-never situation, they may be able to rely upon the exigent circumstances exception on a case-by-case basis.
And then, in a section of the opinion that tracked the reasoning of the Court of Criminal Appeals opinion in Granville, Chief Justice Roberts rejected the argument that an arrestee lost any legitimate expectation of privacy in his phone upon arrest. As Justice Roberts explained, “the fact that an arrestee has diminished privacy interests does not mean the Fourth Amendment falls out of the picture entirely.”
But the Court went further than the Texas Court of Criminal Appeals by also distinguishing the modern cell phone from the package of cigarettes at issue in United States v. Robinson.10 While he acknowledged that lower courts had upheld searches of address books and purses incident to arrest, he acknowledged that cell phones are both quantitatively and qualitatively different from other objects that might be kept on an arrestee’s person. Describing cell phones as everything but Hermione’s purse (with an undetectable extension charm), the Court then waxed rhapsodic about all the different functions cell phones are now capable of as well as emphasizing their immense storage capacity. This immense storage capacity allowed cell phones to store “the sum of an individual’s private life,” both in the individual items stored and the aggregate. As Chief Justice Roberts observed, searching a cell phone could expose to the government far more than the most exhaustive search of a house because it contains a broad array of private information never found in a home in any form—unless the phone is. And don’t even get him started on the Cloud.11
What about
“reasonable belief”?
If there is any potential weakness in the opinion, it lies in the Court’s rejection of the argument that the search could have been justified under the “reasonable belief” standard set out in Arizona v. Gant. Chief Justice Roberts correctly noted that the majority opinion in Gant had noted this type of search for evidence of the arrest was endorsed based upon “circumstances unique to the vehicle context.” But the Court had never really explained in Gant what those circumstances were and why they would not apply to a search of a person.12 Justice Scalia’s concurring opinion in Thornton v. United States—the opinion that contained the justification for that type of search in the first place—first spoke of a “general interest” in gathering evidence and found support for this theory in cases where business places were searched. The only reason Justice Scalia limited this general search to vehicles was because a car was an “effect” that had a diminished expectation of privacy.13 Given that the majority in Riley had also found there was a diminished, though not extinguished, expectation of privacy in a person’s cell phone, Chief Justice Robert’s attempt to foreclose a Gant “reasonable belief” search of a cell phone because Gant was only about cars seems to give short shrift to what was apparently a much more developed argument by the State.
Similarly, the Court’s holding that there is no limiting principle when applying the “reasonable belief” search exception to a cell phone search seems to beg the question. The Court explains that in the vehicle context this type of search is necessarily limited to past crimes, but cell phone searches could reveal incriminating evidence regardless of when the crime occurred.14 And while he observes that Gant necessarily restricts broad searches resulting from traffic violations, Chief Justice Roberts felt that only an inexperienced or unimaginative police officer could not come up with several reasons to suppose a cell phone would contain evidence of a traffic offense. But don’t courts already litigate the reasonableness of officer imagination?15 Perhaps the Court’s efforts to distinguish cell phone searches with vehicle searches belies a skepticism of the relatively newly-minted “reasonable belief” search announced in Gant in addition to its strong desire to categorically remove cell phones from warrantless searches.
Finally, the Court rejected attempts to limit the scope of the search to call logs or analogues of physical records such as an address book. Acknowledging that the Court had allowed the use of pen registers to identify called numbers in Smith v. Maryland, Chief Justice Roberts nevertheless observed that the identifying information attached to the phone numbers in a contacts list is more than just phone numbers. And a proposed analogue test that allowed police to search for digital information on a phone that had a real-world analogue was even more problematic to the Court. As Chief Justice Roberts observed, this test would allow police to rummage through thousands of photos in a gallery simply because an individual might keep a photograph or two in his wallet. When addressing why the scope of the warrantless search could not be limited to specific areas of a cell phone, the Court simply said this approach would impose few meaningful constraints on officers.
Because cell phones.
Admittedly, these types of critical observations are merely arranging deck chairs on the Titanic. The United States Supreme Court was called upon to interpret the scope of the Fourth Amendment, and it drew the line at the lock screen rather than the call log. And it is difficult to argue with Chief Justice Roberts’ central premise that cell phones, with all that they contain and reveal, hold “the privacies of life” for many Americans. That is really the driving force behind the opinion, the unique nature of the modern cell phone. As difficult as this may make cell phone searches for law enforcement, privacy comes at a cost. Of course, the Court stressed that fact-specific threats such as child abduction or bomb detonation may justify the warrantless search of cell phone data under the doctrine of exigent circumstances. But such circumstances merit consideration only on a case-by-case basis. As a general matter, if you want to search a cell phone, the Supreme Court requires you to get a warrant.
Editor’s note: This is the last As The Judges Saw It column that the esteemed David Newell will write, as he plans to leave prosecutor ranks at the end of December for a seat on the Texas Court of Criminal Appeals. He has been a longtime contributor to this journal (and a dear friend to me, its editor), and all of us within the family of Texas prosecutors have benefitted from his wisdom, insight, and humor. Pretty soon he will be writing the very CCA opinions that shape our practice of law, not just writing about them, and I for one can’t wait to read his footnotes.
Endnotes
1 State v. Granville, 423 S.W.3d 399 (Tex. Crim. App. 2014).
2 In case you were wondering, Chief Justice Roberts clarifies that a “smart phone” is a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity.
3 Yes, Chief Justice Roberts also clarified that a “flip phone” is a kind of phone that is flipped open for use and that generally has a smaller range of features than a smart phone.
4 The exact quote is, “They pressed one button on the phone to access its call log, then another button to determine the phone number associated with the ‘my house’ label.” Apparently more than one officer was required to work the otherwise primitive flip phone.”
5 Chief Justice Roberts did not explain “wallpaper.”
6 Riley v. California, 134 S.Ct. 2473 (June 25, 2014).
7 Justice Alito agreed with the majority that law enforcement officers should get a warrant before searching a phone. However, he did write extensively upon the history of the search-incident-to-arrest exception to advance his contention that search-incident-to-arrest should not be tied to the concepts of officer safety and preservation of evidence. He would also reconsider whether the federal or state legislatures could permissibly draw reasonable distinctions between categories of information contained on a cell phone to allow searches without a warrant in certain circumstances. As mentioned in the article, there were no takers on his invitation.
8 United States v. Robinson, 94 S.Ct. 467 (1973).
9 Not yet anyway. See Jacobsson, Sarah “Man Infects Himself with (Computer) Virus” www.pcworld.com/article/197294/Human_Virus.html. OK, maybe I watched too much Fringe on Netflix last night.
10 In Robinson, the Court upheld a search where a police officer found a package of cigarettes in a defendant’s pocket during a search incident to arrest and looked inside it to find heroin. United States v. Robinson, 94 S.Ct. 467 (1973). But Chief Justice Roberts suggests that comparing a search of a cigarette container to a search of a cell phone is like “saying a ride on horseback is materially indistinguishable from a flight to the moon.”
11 Indeed, Chief Justice Roberts also went on to explain how the analogy of a cell phone to a container crumbled in the face of a cell phone’s ability to access data stored elsewhere. As he observed, “Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.” Even the Chief Justice of the United States Supreme Court doesn’t understand the Cloud.
12 Arizona v. Gant, 129 S.Ct. 1710, 1719 (2009).
13 Thornton v. United States, 124 S.Ct. 2127, 2137 (Scalia, J. concurring).
14 Because police never search a car for a past crime—such as possession of marijuana—and find evidence of an ongoing crime, such as possession of cocaine. See e.g. New York v. Belton, 101 S.Ct. 2860 (1981)(upholding search incident to an arrest for possession of marijuana that uncovered possession of cocaine).
15 See e.g. Ybarra v. Illinois, 100 S.Ct. 338 (1979)(officer lacked specific articulable facts to justify pat-down of bar patron despite having search warrant for premises and patron’s possible connection to drug trafficking).