Concerning the Constitutionality of a Warrantless Cell Phone Search Incident to Arrest
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.
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
- 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)
- Fifth Circuit
- 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).