Riley v. California
This case addresses the question of whether the search of a cell phone after a lawful arrest qualifies under the search incident to arrest exception to the Fourth Amendment. The lower court held that the search of a cell phone was a lawful exercise of broad police booking powers after arrest under the Fourth Amendment.
Appellant, David Leon Riley, is part of the Lincoln Park Gang and a resident of San Diego. He was involved in an August 2, 2009 shooting of a rival gang member. On August 22, 2009, Riley was stopped by police while driving another car for expired registration tags. Police decided to impound the vehicle and found loaded guns during a standard inventory check. Riley was arrested and his cell phone was searched incident to arrest. Police discovered information related to Riley's membership in gangs and of other gang members.
The trial court convicted Riley and held that the search of Riley's cell phone was lawful under People v. Diaz, stating "the cell phone, which I understand it was on [Riley's] person at the time of the arrest, would fall into the category of a booking search, the scope of which is very broad".
Riley appealed, but the appellate court affirmed the trial court, holding that the prosecution met the burden required to justify a warrantless search incident to arrest. The court relied on Diaz, which held that a search of a cell phone incident to arrest was permissible without consideration as to whether an exigency existed. Riley pointed to new evidence showing he had taken the cell phone from his pocket and placed it on the seat of the car, away from his person, but the appellate court refused to consider the new evidence.
Under the Supreme Court's ruling in United States v. Robinson, 414 U.S. 218 (1973), police may conduct a full search of arrestees after a lawful arrest that includes containers. In Robinson, the police conducted a search of a package found within the arrestee's pocket, which the court held to be permissible under the Fourth amendment. There is a developing disagreement among courts at both the federal and state level as to whether the search incident to arrest ("SIA") exception allows police to search the contents of cellphones found on or near persons who are arrested. The Fourth, Fifth, and Seventh Circuits allow SIA of cellphones with various standards, along with the supreme courts of Georgia, Massachusetts, and California. SIA of cellphones has been ruled illegal by the First Circuit, and the supreme courts of Florida and Ohio.
Modern Data Extraction Devices ("DEDs") are capable of obtaining many types of information from personal electronic devices such as cellphones, tablets, and GPS. They can bypass lockscreen and password protections, and recover information that has been previously deleted. Examples of data that can be obtained includes call history, SMS messages, contacts, calendar, email, chat, media files, geo tags, passwords, location information (WiFi, cell tower and navigation applications) and GPS fixes. It can also include information from social networks.
Modern cellphones have the ability to store vast amounts of data, both internally and through connecting to remote services via the Internet. This data is intensely private and can involve the most intimate details of an individual's personal life. It may include text messages, emails, social networking information, documents, pictures, videos, call records, and other data. EPIC has an interest in ensuring that the vast amount of personal data contained in individuals' cellphones is not searched and stored by the government without prior judicial authorization and oversight. The information contained in cellphones is often highly personal and may not have any connection to the reason for the arrest. Combined with the plain view exception, allowing SIA of cellphones would permit police to search the entirety of an arrestee's digital life. Such data may also contain communications and information from innocent 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.
California Court of Appeals
- Cellebrite, a popular handheld Data Extraction Device for phones, tablets, and more
- Fact sheet for the Cellebrite "UFED Touch Ultimate" DED
- 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
- Orin Kerr, Foreword: Accounting for Technological Change, 36 Harv. J.L. & Pub. Pol'y 403 (2013).
- Michigan Police Use Device to Download Cellphone Data; ACLU Objects, ABC News (Apr. 21, 2011)
- Orin Kerr, First Circuit Rules That Police Need a Warrant to Search A Cell Phone Incident to Arrest, Volokh Conspiracy (May 17, 2013).
- Orin Kerr, Florida Supreme Court Deepens Lower Court Split on Searching a Cell Phone Incident to Arrest, Volokh Conspiracy (May 2, 2013).
- Orin Kerr, Judge Posner on Searching a Cell Phone Incident to Arrest, Volokh Conspiracy (Feb. 29, 2013).