July 3, 2014
On June 25, 2014, the U.S. Supreme Court unanimously held in Riley v. California, 13–132, that the Fourth Amendment generally requires law enforcement to obtain a warrant prior to reviewing digital information that is stored on a cellphone seized incident to arrest. Riley represents the first time that the Supreme Court has examined Fourth Amendment protections in the context of "digital" searches.
The Two Cases Below
In the first of the two cases below, defendant/petitioner David Leon Riley was pulled over by California police for driving with expired registration tags. During the stop officers determined that Riley’s driver’s license was suspended, and in the course of conducting a subsequent impound inventory they uncovered two concealed and loaded firearms hidden within the car in violation of California state law. Riley was arrested, his cellphone was seized and searched under the "search incident to arrest" doctrine, and a review of the digital data contents of Riley’s phone revealed a variety of gang indicia. Riley was subsequently tied to a prior gang-related drive-by and charged with shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic firearm.
Riley filed a pretrial motion seeking to suppress the evidence regarding his gang affiliation that had been acquired through the searches of his cell phone. This motion was denied, and at trial the jury heard expert testimony regarding Riley’s gang membership. Riley was convicted on all three counts, and his convictions were upheld on appeal.
In the second case below, a police officer performing routine surveillance observed defendant/respondent Brima Wurie make an apparent drug sale from a car. Following his arrest, Wurie’s cellphone was seized and searched, again pursuant to the "search incident to arrest" doctrine. While officers were examining Wurie’s cellphone it received an incoming call from a source identified as "My House." Police accessed the phone’s call log, identified the phone number that Wurie had designated as "My House," and traced that number back to a physical address. After executing a search warrant on that address that netted 215 grams of crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash, Wurie was charged with distributing crack cocaine, possessing crack cocaine with intent to distribute, and felony gun possession.
Wurie filed a pretrial motion seeking to suppress all evidence obtained from the search of his apartment, on the ground that it was the fruit of an unconstitutional search of his cellphone. This motion was also denied, and Wurie was similarly convicted on all three counts. On appeal, however, a divided panel of the Massachusetts Court of Appeals reversed the trial court’s denial of this motion and vacated two of Wurie’s convictions on the ground that cell phones are "distinct" from traditional forms of personalty that may be searched incident to arrest without a warrant, citing "the amount of personal data [cellphones] contain and the negligible threat they pose to law enforcement interests." Slip op. at 4.
The Supreme Court’s Decision in Riley v. California
The Supreme Court granted certiorari in both cases to address the common question "whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested." Slip op. at 1. In a unanimous decision, the Court unequivocally answered that question in the negative. Id. at 27-28. Prior to Riley, a split had developed between numerous state and federal courts over the constitutionality of conducting warrantless searches of cell phone data under the "search incident to arrest" doctrine. The Fourth, Fifth, and Seventh Circuits (as well as the Supreme Courts of Georgia, Massachusetts, and California) had ruled that officers could search cell phones incident to arrest under various standards; lowers courts in the First Circuit (as well as the Supreme Courts of Florida and Ohio) had ruled to the contrary.
In Riley, the Court began its analysis by noting that "the ultimate touchstone of [any] Fourth Amendment [inquiry] is ‘reasonableness’," and emphasizing that under longstanding judicial precedent, "[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing . . . reasonableness generally requires the obtaining of a judicial warrant." Id. at 5 (internal citations omitted). A warrantless search is therefore treated as per se unreasonable unless the government can show that it falls within one or more well-defined "exceptions" to this warrant requirement. At issue in both of the cases below was the "search incident to arrest" exception. Id.
Observing that the proper scope of this exception has long been a subject of heated debate, the Court identified several prior decisions that "set forth the rules governing such searches." Id. at 6.
The Court found that these cases were not dispositive on the question presented because "modern cellphones . . . which are now such a pervasive and insistent part of daily life" are "based on technology [that would have been] nearly inconceivable just a few decades ago, when Chimel and Robinson were decided." Id. at 9. As a result, the Court found it necessary to "assess . . . the degree to which [the warrantless search of a cellphone incident to arrest] intrudes upon an individual’s privacy and, on the other hand, the degree to which it is needed for the promotion of legitimate government interests." Id., citing and quoting Wyoming v. Houghton, 526 U.S. 295, 300 (1999).
First, the Court rejected the application of the first Chimel rationale (necessity of securing officer safety) on the ground that "[d]igital data stored on a cellphone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape." Id. at 10. Although the Court stressed that "[l]aw enforcement officials remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon–say, to determine there is [not] a razor blade hidden between the phone and its case," a warrantless search of the digital contents stored on the phone is thus unjustified on this ground. Id. at 10-11.
Second, the Court dismissed the second Chimel rationale (necessity of preserving evidence) as similarly inapplicable, on the ground that "once law enforcement officers have secured a cellphone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone." Id. at 12-13. The Court rejected the argument that remote "data wiping" conducted by third-party associates of a detainee constituted a sufficiently "prevalent" occurrence to justify application of this second rationale, and further noted that even if remote data wiping were to become more prevalent in the future, law enforcement officials could "fully prevent" it by taking other measures (for example, by simply turning the phone off or removing its battery). Id. at 12-14.
Turning to the privacy side of the analysis, the Court began by stressing that "[t]he fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely . . . [t]o the contrary, when privacy related concerns are weighty enough, a search may require a warrant, notwithstanding the diminished expectations of privacy of an arrestee." Id. at 16 (citations omitted). In rejecting the government’s argument that the search of digital data contained on a cellphone was "materially indistinguishable" from searches on "traditional" physical items carried on an arrestee’s person, the Court observed that modern cellphones have the capacity to store "millions of pages of text, thousands of picture or hundreds of videos" and thus "implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse." Id. at 16-18.
Furthermore, "a cellphone collects in one place many distinct types of information," which collectively "reveal much more in combination than any isolated record . . . [and allow t]he sum of an individual’s private life [to] be reconstructed . . . dat[ing] back to the purchase of the phone, or even earlier." Id. at 18. Nor did the Court find the differences to be purely qualitative–to the contrary, "certain types of data [regularly saved on cellphones, such as] Internet search[es] and browsing history [or] location information [or] ‘apps’. . . are also qualitatively different" from the type of information that would be revealed by the search of traditional forms of personalty. Id. at 19-20. Finally, the Court emphasized that "a significant majority of American adults now own [cellphones]," and observed that "it is no exaggeration to say that more than 90% of American adults who own a cellphone keep on their person a digital record of nearly every aspect of their lives.". Id. at 9, 19.
In a relatively brief–but potentially important–passage, the Court also noted that a further complication stems from the fact that "the data a user views on many modern cellphones may not in fact be stored on the device itself." Id. at 21. Because modern cellphones have increasingly come to rely on "cloud computing" (e.g., the storage of data on remote servers which are then accessed as necessary for retrieval purposes), it may be difficult if not impossible for law enforcement to tell whether "particular information is stored on the device or in the cloud." Id. The government had "conced[ed] that the search incident to arrest exception may not be stretched to cover a search of [cloud computing] filed . . . [because s]uch a search would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement officials to unlock and search a house." Id. Because "officers searching a phone’s data would not typically know whether the information they are viewing [is] stored locally . . . or has been pulled from the cloud," the Court found "[t]he possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee is yet another reason the that privacy interests here dwarf those in Robinson." Id.
The Court also quickly dispatched several additional arguments raised by the government: First, the Court rejected the argument that the Gant vehicular search standard should be extended to cellphones, noting that, by its own terms, Gant relied on "circumstances unique to the vehicle context." Id. at 22-23. The Court similarly rejected an argument that officers should be allowed to conduct a limited search of cellphone data if they could have obtained the same information from a pre-digital counterpart, explaining that "[t]he fact that a search in a pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery[, nor does t]he fact that someone could have tucked a bank statement in a pocket . . . justify a search of every bank statement for the last five years." Id. at 24.
In closing, the Court conceded that "our decision today will have an impact on the ability of law enforcement to combat crime . . . [because protecting p]rivacy comes at a cost." Id. at 25. Nevertheless, the Court unequivocally reiterated that "[m]odern cellphones are not just another technological convenience" because "[w]ith all they contain and all they may reveal, they hold for many Americans the privacies of life . . . [and t]he fact that technology 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." Id. at 28.
In a short concurrence, Justice Alito noted that while he agreed with the Court’s ruling, he would be willing to "reconsider the question . . . if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and the privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories or information or perhaps other variables." Slip op. of Alito, at 5. "[I]t would be very unfortunate," he opined, "if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment[, because l]egislatures . . . are in a better position . . . to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future [on this front]." Id. at 6.
As the Court itself observed, Riley promises to have a profound impact on both criminal procedure jurisprudence and attendant law enforcement practices; while the search incident to arrest doctrine is technically an "exception" to the default rule that searches conducted by government actors require warrants, as a matter of practice, "warrantless searches incident to arrest [actually] occur with far greater frequency than searches conducted pursuant to a warrant." Slip op. at 6.
Gibson, Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work in the firm’s Information Technology and Data Privacy Group or the authors of this alert:
Please also feel free to contact the following attorneys, all of whom are part of Gibson Dunn’s Information Technology & Data Privacy Practice Group:
M. Sean Royall – Dallas (214-698-3256, firstname.lastname@example.org)
Debra Wong Yang – Los Angeles (213-229-7472, email@example.com)
Alexander H. Southwell – New York (212-351-3981, firstname.lastname@example.org)
Karl G. Nelson – Dallas (214-698-3203, email@example.com)
Joshua A. Jessen – Orange County/Palo Alto (949-451-4114, firstname.lastname@example.org)
Ryan T. Bergsieker – Denver (303-298-5774, email@example.com)
Eric D. Vandevelde – Los Angeles (213-229-7186, firstname.lastname@example.org)
© 2014 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.