Riley v. California
- EPIC Asks Supreme Court to Protect Cellphone Privacy: EPIC, joined by twenty-four technical experts and legal scholars, has filed a "friend of the court" brief in a Supreme Court case concerning the warrantless search of a cell phone. In Riley v. California, the Court will determine whether the search of a phone following an arrest violates the Fourth Amendment if no warrant is obtained. Lower courts are currently divided on this issue. EPIC's amicus brief explains that "modern cell phone technology provides access to an extraordinary amount of personal data . . . Allowing police officers to search a person's cell phone without a warrant following an arrest would be a substantial infringement on privacy, is unnecessary, and unreasonable under the Fourth Amendment." EPIC's brief describes the vast amount of personal information available on the phone and from the phone. "From a cellphone," EPIC explains "users can even see into their homes and control devices and appliances." EPIC points out that "there is no need to allow warrantless searches when currently available techniques allow law enforcement to secure the cell phone data pending a judicial determination of probable cause." EPIC routinely participates in privacy cases before the US Supreme Court. For more information, see EPIC: Riley v. California, EPIC: EPIC Amicus Curiae Briefs. (Mar. 7, 2014)
- Supreme Court to Rule on Cellphone Privacy: Today the U.S. Supreme Court granted certiorari in Riley v. California and United States v. Wurie, two cases involving the warrantless search of an individual's cell phone incident to arrest. The Court will need to determine whether the Fourth Amendment limits a law enforcement officer from searching through the troves of data that are stored on an individual's cell phone when that individual is arrested. Courts have previously held that officers can search an individual's person and effects when they place them under arrest. But modern cell phones enable access to a wealth of personal data, which is unrelated to the Government’s reason for securing an arrestee. For more information, see EPIC: Riley v. California and EPIC: Amicus Curiae Briefs. (Jan. 17, 2014)
- US Supreme Court May Consider Cell Phone Privacy: Can the police warrantlessly search the emails, texts, and address book on your cell phone if you are arrested? The U.S. Supreme Court is likely to address that question in the upcoming term. Two cases pending before the Court ask whether, under the Fourth Amendment, a cell phone's contents can be searched incident to an arrest without a warrant. In Riley v. California, the defendant Riley challenges a police officer's search of his smartphone. In United States v. Wurie, the Department of Justice seeks review of an appeals court's decision that warrants are necessary to search a cell phone. EPIC recently argued successfully to the New Jersey Supreme Court that a warrant is required to track a cell phone's location. The U.S. Supreme Court held last year in United States v. Jones that warrants are required to use GPS tracking devices. For more information, see EPIC: Riley v. California. (Aug. 20, 2013)
This case involves an important Fourth Amendment privacy issue that impacts millions of Americans each year: whether officers can search a suspect's cell phone without a warrant during an arrest. The majority of the more than twelve million arrests each year are for alleged misdemanors, and most individuals arrested are never convicted of any crime. In Riley v. California, the lower court ruled that a police officer can not only seize and secure a suspect's cell phone pursuant to an arrest, they can also search the contents of that phone without any warrant or probable cause.
The Petitioner and Defendant in this case, David Leon Riley, was arrested on August 22, 2009, after a traffic stop resulted in the discovery of loaded firearms in his car. The officers subsequently seized Riley's phone, and searched through his messages, contacts, videos, and photographs. Based in part on the data stored on Riley's phone, the officers charged him with an unrelated shooting that had taken place several weeks prior to his arrest.
Riley moved to suppress all the evidence the officers had obtained during the search of his cell phone on the grounds that the search violated his Fourth Amendment rights. The trial court rejected this argument and held that the search was legitimate incident to arrest. Riley was subsequently convicted. On appeal, the court affirmed the judgement based on the recent California Supreme Court decision, People v. Diaz. In Diaz, the court held that the Fourth Amendment "search-incident-to-arrest" doctrine permits the police to conduct a full exploratory search of a cell phone (even if it is conducted later and at a different location) whenever the phone is found near the suspect at the time of arrest.
The Defendant in Diaz sought review in the U.S. Supreme Court, but while his petition was pending the California Legislature passed a bill requiring police to obtain a warrant before searching the contents of any "portable electronic devices." The Court subsequently denied the petition after the State brought this bill to its attention. But, one week later, the Governor vetoed the bill, stating that "courts are better suited" to decide this issue of Fourth Amendment law.
There is currently a split among state and federal courts over the cell phone search-incident-to-arrest doctrine. The Fourth, Fifth, and Seventh Circuits have ruled that officers can search cell phones incident to arrest under various standards, and that rule has been followed by the Supreme Courts of Georgia, Massachusetts, and California. Other courts in the First Circuit and the Supreme Courts of Florida and Ohio have disagreed.
The Search Incident to Arrest Exception
The Supreme Court first outlined the search-incident-to-arrest exception in Chimel v. California, 395 U.S. 752 (1969) and United States v. Robinson, 414 U.S. 218 (1973), holding that police may search a suspect's person and the immediate vicinity during a lawful arrest. This exception serves two governmental interests: (1) the need to ensure officer safety and disarm the suspect and (2) the need to prevent destruction of evidence. But, as the Court stressed in a recent case, when "there is no possibility" that the suspect could gain access to a weapon or destroy evidence "both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." Arizona v. Gant, 556 U.S. 332, 339 (2009). The basic rule under the Fourth Amendment is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable." Id. at 338.
Petitioner Riley's Brief
In his opening brief, Riley argued that the search of his cell phone was not justified under the Chimel exception because it was not necessary to serve any legitimate government interest. Specifically, the device did not threaten officer safety, and searching it after it had already been seized was not necessary to prevent the destruction of evidence. Riley also argued that the search of his cell phone was unreasonably intrusive given the extraordinary amount of sensitive personal information stored on the phone, and the First Amendment implications of the government's collection of those communications. Petitioner also argued that it would not be sufficient for the Court to establish a rule limiting the cell phone search to situations where the officer believes the phone contains evidence of the crime of arrest. Finally, Riley argued that the search of his cell phone at the police stationhouse was too remote from his arrest to be justified under the exception.
EPIC has an interest in upholding Fourth Amendment protections against unreasonable searches and seizures. In particular, EPIC is focused on preventing the erosion of constitutional privacy rights due to the emergence of new technologies. Cell phone privacy is of critical concern to all Americans, as sensitive private data is now routinely stored and accessed via Internet-enabled smartphones. This data is intensely private and can reveal intimate details including sensitive communications, photos and videos, financial data, health records, and even confidential documents stored on remote servers. Phones also provide access to communications and records of third parties, whose privacy interests are also implicated.
EPIC previously outlined the importance of minimizing data subject to law enforcement search and seizure in its amicus curiae brief inCity of Ontario, Ca v. Quon. Specifically, EPIC recommended that the Supreme Court adopt the data minimization principles outlined by the Ninth Circuit in Comprehensive Drug Testing v. United States, 579 F.3d 989 (9th Cir. 2009). EPIC seeks to ensure that the amount of individualized private data collected and stored by the government is minimized and subject to rigorous privacy protections. Giving police the power to store the vast amount of information available from cellphones poses numerous privacy concerns in terms of data retention, security breaches, and mission creep.
U.S. Supreme Court
- Merits State
- Brief for Petitioner Riley
- Amicus Briefs in Support of Petitioner
- Brief of EPIC and Twenty-four Technical Experts and Legal Scholars
- Brief of the American Civil Liberties Union
- Brief for the American Library Association and the Internet Archive
- Brief for the Cato Institute
- Brief of Center for Democracy & Technology and Electronic Frontier Foundation
- Brief of Constitutional Accountability Center
- Brief of the DKT Liberty Project
- Brief of Criminal Law Professors
- Brief of the National Association of Criminal Defense Lawyers and the Brennan Center for Justice
- Brief of National Press Photographers Association and Thirteen Media Organizations
- Amicus Briefs in Support of Neither Party
- Cert. Petition Stage
- Petition for Writ of Certiorari
- Brief of the State of California in Opposition
- Brief for Petitioner Riley
- Briefs of Amici Curiae in Support of Petitioner Riley
California Court of Appeals
U.S. Supreme Court
- Merits State
- Cert. Petition Stage
Court of Appeals for the First Circuit
- Supreme Court and Appellate Court Cases
- United States v. Robinson, 414 U.S. 218 (1973).
- Lower Courts Allowing Warrantless Cell Phone Searches
- Fifth Circuit
- United States v. Finley, 477 F.3d 250 (5th Cir. 2007)
- Fourth Circuit
- United States v. Murphy, 552 F.3d 405 (4th Cir. 2009)
- Seventh Circuit
- United States v. Florez-Lopez, 670 F.3d 803 (7th Cir. 2012)
- California Supreme Court
- People v. Diaz, 51 Cal.4th 84 (Cal. 2011)
- Massachusetts Supreme Court
- Commonwealth v. Phifer, 979 N.E.2d 210 (Mass. 2012)
- Georgia Supreme Court
- Hawkins v. State, 723 S.E.2d 924 (Ga. 2012)
- Lower Courts Not Allowing Warrantless Cell Phone Searches
Relevant Law Review Articles, Reports, and Books
- PewResearch Internet Project, The Web at 25 in the U.S. (Feb. 27, 2014)
- Federal Reserve, Consumers and Mobile Financial Services 2013
- El Paso Intelligence Center, Preserving Cell Phone Data, Tactical Intelligence Bulletin EB11-09 (2011)
- Association of Chief Police Officers, Good Practice for Computer Based Electronic Evidence
- Think Insights, Mobile Planet
- NIST, Guidelines on Cell Phone Forensics (2007)
- Cellebrite, a popular handheld Data Extraction Device for phones, tablets, and more
- Fact sheet for the Cellebrite "UFED Touch Ultimate" DED
- Charles MacLean, But, Your Honor, a Cell Phone is not a Cigarette Pack: An Immodest Call for a Return to the Chimel Justifications for Cell Phone Memory Searches Incident to Lawful Arrest, 2012 Fed. Cts. L. Rev. 6 (June 2012).
- Orin Kerr, Foreword: Accounting for Technological Change, 36 Harv. J.L. & Pub. Pol'y 403 (2013).
- Op-Ed, We've Got Your Number, N.Y. Times (Jan. 22, 2014)
- Editorial, No Warrant, No Search of Your Cellphone, L.A. Times (Jan. 21, 2014)
- Mobile-Phone Searches by Police Get Top U.S. Court Review, Bloomberg (Jan. 18, 2014)
- Supreme Court to decide case on police cellphone searches, Washington Post (Jan. 17, 2013)
- Supreme Court Will Consider Whether Police Need Warrants to Search Cellphones, N.Y. Times (Jan. 17, 2013)
- High Court to Examine Cellphone Privacy, USA Today (Jan. 17, 2014)
- Your Cellphone: Private or Not?, USA Today (Sept. 9, 2013)
- Michigan Police Use Device to Download Cellphone Data; ACLU Objects, ABC News (Apr. 21, 2011)
- Choosing Between 'Never Search' and 'Sometimes Search' in the Cell Phone Search Cases, Volokh Conspiracy (April 16, 2014).
- Can the Cops Search Your Phone Without a Warrant? The Supreme Court Intends to Weigh In, Washington Post - The Switch (Jan. 18, 2014)
- Supreme Court to Decide if Fourth Amendment Applies to Police Searches of Smart Phones, Reason.com (Jan. 18, 2014)
- Court to Rule on Cellphone Privacy, SCOTUSblog (Jan. 17, 2014)
- First Circuit Rules That Police Need a Warrant to Search A Cell Phone Incident to Arrest, Volokh Conspiracy (May 17, 2013).
- Florida Supreme Court Deepens Lower Court Split on Searching a Cell Phone Incident to Arrest, Volokh Conspiracy (May 2, 2013).
- Judge Posner on Searching a Cell Phone Incident to Arrest, Volokh Conspiracy (Feb. 29, 2013).