Riley v. California
The Supreme Court held in a unanimous decision by Chief Justice Roberts, that police generally require a warrant in order to search cell phones, even when it occurs during an otherwise lawful arrest. The Chief Justice explained that analogizing a search of data on the cell phone to a search of physical items is akin to "saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from Point A to Point B but little else justified lumping them together." The Court also emphasized that "the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple--get a warrant."
EPIC's amicus brief, joined by twenty-four legal scholars and technical experts from the EPIC Advisory Board, was cited twice in the Court's opinion, on pages 20 and 21 and the Court also adopted other portions of the brief without explicit reference. The Court stated:
Mobile application software on a cell phone, or "apps" offer a range of tools for managing detailed information about all aspects of a person's life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for shar- ing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase "there's an app for that" is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user's life. See Brief for Electronic Privacy Information Center as Amicus Curiae in No. 13-132, p. 9.
To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. See New York v. Belton, 453 U. S. 454, 460, n. 4 (1981) (describing a "container" as "any object capable of holding another object"). But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. That is what cell phones, with increasing frequency, are designed to do by taking advantage of "cloud computing." Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. 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. See Brief for Electronic Privacy Information Center in No. 13-132, at 12-14, 20. Moreover, the same type of data may be stored locally on the device for one user and in the cloud for another.
- EPIC, Legal Scholars, Technical Experts Urge Federal Appeals Court to Safeguard Telephone "Metadata": EPIC has filed an amicus curiae brief, joined by 33 technical experts and legal scholars, in support of a challenge to the NSA telephone record collection program. The case Smith v. Obama will be heard by the Court of Appeals for the Ninth Circuit this fall. Earlier this year, a lower court ruled that the Fourth Amendment does not protect telephone call record information because of a 1979 case Smith v. Maryland. In the brief for the federal appeals court, EPIC wrote that "changes in technology and the Supreme Court's recent decision in Riley v. California favor a new legal rule that recognizes the privacy interest inherent in modern communications records." EPIC routinely participates as a friend of the court in cases raising novel privacy and civil liberties issues. For more information, see EPIC: Smith v. Obama, EPIC: Riley v. California, and EPIC Amicus Briefs. (Sep. 10, 2014)
- Unanimous Supreme Court Upholds Privacy Rights of Cell Phone Users: The Supreme Court ruled today that a warrantless search of a cell phone violates the Fourth Amendment, even when it occurs during a lawful arrest. The Court's decision in Riley v. California makes clear that "a search of the information on a cell phone bears little resemblance to the type of brief physical search" allowed in the past. The Court said "Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person." EPIC, joined by 24 legal scholars and technical experts on the EPIC Advisory Board, filed a friend of the court brief, arguing that cell phones contain a wealth of sensitive personal data, and that officers can reasonably secure phones while they apply for a warrant to search them. EPIC wrote, "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." The EPIC brief was cited by the Supreme Court in its decision. For more information, see EPIC: Riley v. California. (Jun. 25, 2014)
- Supreme Court Considers Privacy of Cell Phones: Today the U.S. Supreme Court heard two cases presenting the question of whether the warrantless search of a cell phone following an arrest violates the Fourth Amendment. A transcript of arguments in the first case, Riley v. California, is here and the second case, United States v. Wurie, is here. The Justices acknowledged that the search of a cell phone is unlike the search of a physical object. Justice Kagan stated "People carry their entire lives on cell phones." EPIC argued in its "friend of the court" brief, signed by twenty-four prominent legal and technical scholars, that "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." According to the Pew Research Group, 90% of American adults have smart phones. Approximately 12 million Americans are arrested each year. For more information, see EPIC: Riley v. California and EPIC Blog - Argument Recap: Justices Look to Limit Warrantless Cell Phone Searches. (Apr. 29, 2014)
- Supreme Court to Hear Cell Phone Privacy Cases: The Supreme Court is set to hear oral arguments next week in two cases concerning the warrantless search of a cell phone following an arrest. EPIC filed a "friend of the court" brief, signed by twenty-four technical experts and legal scholars, arguing that the Fourth Amendment requires a warrant because of the vast amount of personal information available on a cellphone. EPIC wrote, "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." Also the Supreme Court this week agreed to review a case considering whether the police may detain a person based on a mistaken interpretation of the law. In Heien v. North Carolina, the person was detained by the police because of a broken taillight. EPIC routinely files amicus briefs in cases raising novel privacy issues. For more information, see EPIC: Riley v. California and EPIC: Amicus Curiae Briefs. (Apr. 24, 2014)
- 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 in City 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
- Oral Argument Transcript
- Brief for Petitioner Riley
- Reply Brief of 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
- Brief of Respondent California
- Amicus Briefs in Support of Respondent
- 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
- Oral Argument Transcript
- Brief for Petitioner United States
- Joint Appendix
- Brief of Respondent Wurie
- Reply Brief of United States
- 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
- SCOTUS Blog Page, Riley v. California
- Orin Kerr, The Significance of Riley, June 25, 2014.
- 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).
- Jeffrey Rosen, The Supreme Court's Cellphone Case Went Even Further Than Privacy Advocates Had Hoped, The New Republic, June 26, 2014.
- Josh Gerstein, SCOTUS Cellphone Ruling Resonates in NSA Fight, Politico, June 26, 2014.
- Robert Barnes, Supreme Court says Police Must Get a Warrant for most cellphone Searches, Washington Post, June 25, 2014.
- Steven Nelson, Supreme Court Shields Cellphones from Warrantless Searches, U.S. News and World Report, June 25, 2014.
- Senator Patrick Leahy (D-VT), Comment of Senator Patrick Leahy on the Supreme Court's Decision in U.S. v. Wurie and Riley v. California, June 25, 2014.
- Richard Wold, Supreme Court limits police searches of cellphones, USA Today, June 25, 2014.
- Dustin Volz, The Supreme Court Just Delivered a Huge Victory to Cell-Phone Privacy, National Journal, June 25, 2014.
- Mark Sherman, Supreme Court: Police need warrants to search mobile phones, PBS NewsHour, June 25, 2014.
- David Savage, Supreme Court: Police can't search smartphones without a warrant, The Los Angles Times, June 25, 2014.
- Adam Liptak, Major Ruling Shields Privacy of Cellphones, The New York Times, June 25, 2014.
- Adam Serwer, Supreme Court rules cell phones cannot be searched without a warrant, MSNBC (June 25, 2014).
- Sen. Rand Paul & Sen. Chris Coons, The Founding Fathers Would Have Protected Your Smartphone, Politico (May 27, 2014)
- Noah Feldman, Your Phone May Not Have The Right to Remain Silent, Bloomberg (Apr. 29, 2014)
- Robert Barnes, Supreme Court Considers Cellphone Searches, Right to Privacy, Washington Post (Apr. 29, 2014)
- Justices Wary of Unlimited Cellphone Searches, Associated Press (Apr. 29, 2014)
- Adam Liptak, Justices Seem Torn on Cellphone Warrants, N.Y. Times (Apr. 29, 2014)
- Josh Gerstein & Tal Kopan, Justices Appear Open to Limits on Cellphone Searches, Politico (Apr. 29, 2014)
- Richard Wolf, Justices to Rule on Cellphone Searches Without Warrants, USA Today (Apr. 28, 2014)
- Dustin Voltz, The Supreme Court is About to Decide the Future of Cell-phone Privacy, National Journal (Apr. 28, 2014)
- Supreme Court Takes on Privacy in Digital Age, Associated Press (Apr. 28, 2014)
- Editorial, Smartphones and the Fourth Amendment, N.Y. Times (Apr. 28, 2014)
- Adam Liptak, Justices Ponder Police Searches of Cell Phones with No Warrant, N.Y. Times (Apr. 27, 2014)
- Bill Mears, Supreme Court to Look at Privacy Cases Involving Police Searches of Cell Phones, CNN (Apr. 25, 2014)
- 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)
Blogs, Television, and Radio
- Marc Rotenberg and Alan Butler, In Riley v. California, Supreme Court Sets Out Fourth Amendment for a Digital Age, SCOTUS Blog Cell Phone Privacy Symposium, June 26, 2014.
- Cell Phone Privacy Symposium, SCOTUS Blog, June 26, 2014.
- Nina Totenberg, High Court Ruling on Search Warrants is Broader than Cellphones, NPR, June 26, 2014.
- Alan Butler, Argument Recap: Justices Look to Limit Warrantless Cell Phone Searches, Privacy Rights Blog @ EPIC.org (Apr. 29, 2014)
- Bill Blum, Two Felons Could Force the Supreme Court to Protect Privacy in the Digital Age, Truthdig (Apr. 29, 2014)
- Jaclyn Belczyk, Supreme Court Hears Arguments on Warrantless Cell Phone Searches, Jurist (Apr. 29, 2014)
- Pete Williams, Supreme Court Looks for Middle Ground on Police Searches of Phones, NBC News (Apr. 29, 2014)
- Nina Totenberg, Supreme Court Considers Limits on Warrantless Cellphone Searches, NPR (Apr. 29, 2014)
- Amy Howe, A Whole New World: Today's Oral Arguments in Plain English, SCOTUSblog (Apr. 29, 2014)
- Cell Phones and Searches, The Brian Lehrer Show
- Adam Serwer, Justices Split on Cops' Right to Search Cell Phones, MSNBC (Apr. 29, 2014)
- Orin Kerr, The Role of Warrants in Cellphone Search Cases, Volokh Conspiracy (Apr. 29, 2014)
- Lyle Denniston, Argument Analysis: Limiting a Search? Sure, but how?, SCOTUSblog (Apr. 29, 2014)
- Orin Kerr, Initial Impressions from the Oral Argument in the Supreme Court Cell Phone Search Cases, Volokh Conspiracy (Apr. 19, 2014)
- Amy Howe, Court Takes on Cellphone Privacy for Arrestees: In Plain English, SCOTUSblog (Apr. 28, 2014)
- Roger Parloff, Can the Police Search Your Cellphone Without a Warrant?, Fortune (Apr. 28, 2014)
- Lyle Denniston, Argument Preview: Police and Cellphone Privacy, SCOTUSblog (Apr. 25, 2014)
- Stephen Wermiel, SCOTUS for Law Students: Searching Cellphones, SCOTUSblog (Apr. 25, 2014)
- Julian Hattem, Feds Back Phone Searches, Oppose 'Kill Switches', The Hill (Apr. 25, 2014)
- 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)
- Kashmir Hill, Where Police Can & Can't Snoop Through Your Phone, Forbes (July 31, 2013)
- 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).
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