On June 25, 2014, a unanimous United States Supreme Court decided Riley v. California, 134 S. Ct. 2473, and held that police may not conduct a warrantless search of the digital information contained in a cell phone or smart phone seized incident to arrest absent exigent circumstances. Rejecting mechanical application of the prior rule allowing virtually unlimited search authority over items seized at arrest, the Riley Court continued the Supreme Court’s trend of applying core Fourth Amendment principles when defining the scope of constitutionally permissible searches, especially those involving emerging technology. See Chimel v. California, 89 S.Ct. 2034 (1969); United States v. Robinson, 94 S.Ct. 467 (1973); Arizona v. Gant, 129 S.Ct. 1710 (2009). The net result is that the Court now requires the government to seek warrants for searches of digital information contained in cell phones absent exigency.
In Riley, the Court decided two consolidated cases — People v. Riley, 2013 WL 475242, D059840 (Cal. App. 4 Dist. Feb. 8, 2013), a California Court of Appeal case, and United States v. Wurie, 728 F.3d 1 (1st Cir. 2013), a case out of the First Circuit. In Riley, the defendant was stopped for driving with expired registration tags. The police discovered firearms, arrested Riley, and seized his smart phone from his pocket. They then accessed its stored information and found words, photographs and videos which allegedly linked Riley to a street gang and a gang-related shooting that had occurred a few weeks earlier. The government charged Riley in connection with the shooting and sought to use the gang-related information from the phone to seek an enhanced sentence. Riley’s motion to suppress the cell phone evidence was denied, the California Court of Appeal upheld the denial, and the California Supreme Court denied Riley’s petition for review.
In United States v. Wurie, a Boston police officer performing routine surveillance observed Wurie making an apparent drug sale from a car and arrested him. Incident to the arrest, the police seized a flip-style cell phone from Wurie and noticed that it was receiving calls from “my house,” as displayed on the external screen. Police opened the phone, accessed the call log, and identified the phone number associated with “my house.” They located the address that corresponded to the phone number, confirmed that the address was Wurie’s apartment and obtained a search warrant for the location. The search yielded drugs, drug paraphernalia, a firearm, ammunition, and cash. As a result of the search, Wurie was charged with drug and firearms offenses. He moved to suppress the evidence obtained from the search of the apartment on the grounds that it was the fruit of an unconstitutional search of his cell phone. The motion to suppress was denied by the district court. A divided First Circuit panel reversed the denial and vacated Wurie’s convictions. The Supreme Court granted certiorari.
The Riley Reasoning
The key issue in Riley was whether the traditional rule allowing police to seize and search anything found in the possession of the arrestee included data stored on a cell phone or smart phone.
As it had done in prior cases, the Riley Court began its analysis of the issues by looking at the underlying reasons for the search. The Court explained that police were permitted to search items found on an arrestee because things on an arrestee’s person could be used as a weapon against the police or could constitute evidence that could be destroyed by the suspect. The Court found, however, that such risks are not present when the search at issue is of digital data on a cell phone, and that rigidly applying a categorical rule permitting the police to search anything found on a suspect upon arrest, including a search of the data stored on a cell phone, made no sense in light of the reasons for the rule. Although the government raised concerns about the security of the data on a phone — for instance, the risk that information on a phone could be remotely wiped, making its data unsearchable — the Court rejected these concerns as insufficient to outweigh the privacy issues at stake. Since data on cell phones cannot be used as a weapon against the police and, once the phone is seized, an arrestee cannot himself destroy potential evidence stored on the cell phone, the logic that allows police to search items incident to arrest no longer applies and cannot be used to justify a search of cell phone data. Significantly, the Riley Court recognized that cell phones are in effect “digital containers” with “immense storage capacity” for private data and, as such, “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse”– items that had traditionally been fair game in searches incident to arrest. Accordingly, the Riley Court concluded that permitting a search of a cell phone upon arrest extended the logic of prior law too far.
In reaching this conclusion, the Riley Court continued a trend in which the Court has closely reviewed the logic of core Fourth Amendment precedents to determine the legality of a search rather than simply building upon more recent cases interpreting those principles. For instance, in 2009, the Court decided Arizona v. Gant. Prior to Gant, lower courts interpreted Supreme Court decisions as permitting police to search the interior of a car after the driver was arrested, even if the driver had been taken out of the vehicle. In Gant, the Court invalidated that interpretation. To reach this result, the Court re-examined the core reasoning justifying such search authority — to prevent an arrestee from reaching for a weapon or destroying evidence. The Gant court concluded that once a driver had been taken out of the car and arrested, there was no longer any possibility that he or she could seize anything in the vehicle and destroy it or use it as a weapon, and thus there was no longer any justification for allowing a warrantless search of the car’s interior.
Riley, like Gant, shows that the Court is concerned with stretching categorical rules governing police behavior beyond their core reasoning. The decision also reflects the Court’s sensitivity to practical concerns in applying existing search and seizure law to new technology.
The immediate upshot of Riley is significant. Police who seize cell phones incident to an arrest generally need a warrant to search their contents. The same rule will apply to computers and computer media as well. This does not mean that cell phones or other digital media are completely off limits to the police absent a warrant. The Court acknowledged that there may be circumstances that justify an exigent, warrantless search of a cell phone, but such exceptions must be established by the police on a case-by-case basis.
It remains to be seen how Riley will apply to future cases where the government seizes information closely related to cell phone use, such as cell-tower tracking data, which can pinpoint a user’s location even in real time, or non-content information relating to cell phone and email usage which can be searched in bulk and mined for insights into private behavior. But Riley and the cases that preceded it make clear that the Court is adapting to the times and will not blindly apply law from an earlier age to today’s digital media.
Michael D. Ricciuti is a partner at K&L Gates, a member of the BBA’s Criminal Law Steering Committee and a member of the Adjunct Faculty at Suffolk Law School, where he teaches Constitutional Law and Criminal Procedure. He received his undergraduate degree and law degree from Harvard University.
Kathleen D. Parker is an associate at K&L Gates. Ms. Parker focuses her practice on general civil and commercial litigation matters and government enforcement matters. She received her undergraduate degree and law degree from Boston College.