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 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.
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)
- 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).