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Volume 10, Number 1 | January 2015
A Focus on Cell Phone Searches
In this issue, two articles focus on cell phone searches in light of the Supreme Court's recent decision in Riley v. California. In the first article, below, Jack Call considers the Riley v. California decision on cell phone searches and its potential impacts. In the second article, Eric Snow discusses procedures for searching cell phones and obtaining relevant records. This issue also contains an update regarding Code of Virginia Section 19.2-386.23, regarding the use of seized drugs and paraphernalia for training or research.
The Supreme Court Rules on Searches of Cell Phones Incident to Arrest
by Jack E. Call
Professor of Criminal Justice
On June 25, the Supreme Court issued its greatly anticipated cell phone decisions. In two cases, Riley v. California and U.S. v. Wurie, the police had searched cell phones incident to a valid arrest of a suspect. In Riley, an inventory search of Riley’s car had resulted in the discovery of two firearms under the car’s hood. When the police arrested Riley, they seized a smartphone they found on Riley’s person. The arresting officers scrolled through the text messages on the smartphone and saw some combinations of words and letters that suggested that Riley might be a member of a gang. Two hours later, the police looked through photographs, videos, and phone numbers contained on the smartphone and saw a photo of a car that the police suspected was involved in a shooting. At trial, Riley sought suppression of this photo (as well as other photos) as a product of an unlawful, warrantless search of his phone.
In Wurie, the police lawfully arrested Wurie after observing what they concluded was a drug transaction and seized his cell phone. While Wurie was at the police station, his phone rang and displayed “our house.” The police examined the phone’s call log to find the phone number associated with “our house” and with an online reverse directory, discovered a street address associated with that phone number. Armed with this information, the police obtained a search warrant for the home at that address and discovered contraband linked to Wurie during the search.
In both cases, the defendants argued that a search of cell phones found on an arrestee exceeds the proper limits of a search incident to arrest.
Previous Supreme Court cases permit warrantless searches of lawfully arrested persons and the area within their immediate control. The Court justifies such searches because of a need to protect the arresting officer and to prevent the destruction of evidence by the person arrested. The defendants in the Riley and Wurie cases argued that the warrantless searches of the contents of arrestees’ cell phones extended well beyond the limits of previous searches incident to arrest by revealing to the police a vast amount of highly private information of the sort that is commonly stored on individual smartphones.
In a single opinion deciding both cases, written by Chief Justice Roberts, the Court held (unanimously) that “[o]ur answer to the question of what police must do before searching a cell phone seized incident to an arrest is …. simple – get a warrant.” This article will examine the reasoning the Court used to come to this conclusion and then look at some important implications of the decision.
The Court began its analysis with a discussion of the three primary Supreme Court cases that have addressed search incident to arrest – Chimel, Robinson, and Gant (cited in footnote 1). The Court found that neither of the rationales behind the search incident to arrest exception justifies a warrantless search of a cell phone found on a person arrested.
As to the need to protect arresting officers, the phone may be inspected to be sure it contains no hidden object that could be used to inflict harm (citing a razor blade as an example). Once that inspection has been completed, however, the likelihood that the phone might contain information of something that would be a threat to the safety of the officers (such as information suggesting that “confederates of the arrestee are headed to the scene”) is too slight to justify the intrusion occasioned by examining the phone’s contents.
As to the possible need to prevent the destruction of evidence, the Court cited two primary concerns expressed in the briefs submitted to the Court – “remote wiping” and “data encryption.” Remote wiping occurs when a third party sends a wireless signal (while the phone is connected to a wireless network) that erases data stored on the phone or it is “programmed to delete data upon entering or leaving certain geographic areas.” Encryption is a feature on some phones that automatically “locks” a phone and creates an extra layer of security in addition to password protection. The Court indicated that these concerns are different from the concerns expressed in Chimel that the arrestee might do something to destroy evidence. Furthermore, the government had not demonstrated that these problems were likely to occur with any frequency. What’s more, the police could prevent many of these problems by powering off the phone, removing its battery, or placing it in a Faraday bag (a bag lined with or made of material that interferes with the transmission of radio waves).
In addition, these two concerns – about officer safety and preservation of evidence – have to be balanced against the privacy interests of the arrestee. Once a person has been subjected to the indignity of an arrest, the arrestee’s privacy interests in his person or the physical objects carried by him (or within his reach) have been reduced dramatically. The government argued in these cases that a cell phone is not materially different from any other physical object found on a person arrested. In what will undoubtedly be the most frequently quoted language in the opinion, the Court indicated that this “is like 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 justifies lumping them together.”
The Court then went into considerable detail to explain what makes cell phones – especially smart phones – so special. While it may be true that a person could carry sensitive personal information on their person – such as a diary, a letter, an appointment book, a video or audio tape – there are physical limits to how much of this kind of material a person can carry with them. However, smart phones are likely to contain all of this kind of information and much more. What’s more, 90% of the population now carries a cell phone with them.
The Court then explained why the “fallback options” asserted by the government were also unworkable. The first alternative expressed by the government was adoption of the Gant standard, utilized in the context of vehicle searches incident to arrest. That standard permits an arresting officer to search the passenger compartment of a vehicle after arresting an occupant if there is reason to believe evidence of the crime of arrest is in the vehicle. However, the Court noted that this exception to the warrant requirement is justified by the reduced expectation of privacy in a motor vehicle and the heightened dangers associated with such vehicles. The Court noted that its earlier analysis demonstrates that neither of these characteristics exists with regard to cell phones.
The second alternative rule advanced by the government was to permit warrantless searches of cell phones when an officer “reasonably believes that information relevant to the crime, the arrestee’s identity, or officer safety will be discovered.” The Court concluded that this rule would impose no practical limitations on the police at all because the effort to determine whether any such information was on the phone would likely permit the arresting officer to look at virtually everything on the phone.
The third government alternative was to permit a search of the call log on the phone in all cases of a lawful arrest, analogizing to the situation in Smith v. Maryland where the Court ruled that collecting a record of all phone numbers called from a particular phone did not intrude upon a reasonable expectation of privacy. The problem with this position is that, in Smith, the Court concluded that the pen register utilized in that case was not a search at all, while all the parties in the present cases conceded that the examination of the defendants’ cell phones was a search. In addition, the call logs on a cell phone contain much more information than simply the numbers called. Therefore, the intrusion involved in accessing a cell phone’s call long would be much greater than the intrusion involved in simply obtaining a list of phone numbers called.
The last government alternative was that the police should be permitted to look in those areas of the phone’s contents that contain the kind of information that could have been contained on a person prior to the use of cell phones. The obvious problem with this approach goes back to an earlier point. While the police perhaps might be permitted to look in an envelope, a pocket diary, an appointment book, or other such sensitive information carried on the person arrested, there is a physical limitation as to how much of this kind of information a person could carry, but there are no such practical limitations with cell phones. Therefore, the privacy interests are not comparable.
Possible Implications of the Decision
The rule established by Riley is relatively straightforward and quite significant – when the police arrest a person and find a cell phone on that person, they may not search the contents of the phone without a search warrant (unless the police possess exigent circumstances suggesting that an immediate search of the phone is necessary to prevent harm to themselves or to others). However, like most new rules dealing with a very basic and common situation, the implications of the rule may be just as important as the rule itself.
It is still too soon for the kind of significant commentary on Riley that is certain to come, but some early reactions suggest some of the potential far-reaching implications of the case. If the Court had simply taken a literal approach to the Chimel/Robinson rule, it would have permitted the police to examine the contents of the cell phones seized in these two cases. However, the Court clearly viewed the technology associated with cell phones as something different. Thus, one important possible implication of Riley is reflected in this comment from Richard Re: “[W]hen it comes to new technologies, lower courts are on notice that they shouldn’t too quickly follow broad statements from pre-digital opinions, even if those opinions emanated from the Supreme Court itself.”
Another important possible implication of this opinion is that it may demonstrate more respect for the warrant requirement by the conservative Justices on the Roberts Court than might have been apparent from a few previous cases. For example, in Florence v. Board of Freeholders, the Court ruled that jails do not need a warrant (nor any level of suspicion) to conduct strip searches of pretrial detainees upon their admission to the jail. In Samson v. California, the Court permitted a warrantless (and again suspicionless) search of a known parolee by a police officer. In the most controversial of these warrantless search cases, Kentucky v. King, the Roberts Court determined that the police may make entry to a residence without a warrant, at least where there are exigent circumstances, even though their own actions created the exigency. The Court permitted warrantless entry even though the police had time to obtain a warrant before they took the action that created the exigency.
However, Riley, by demonstrating a concern for the privacy of the information contained on cell phones, also demonstrates recognition of the importance of warrants in protecting that privacy. The Court once said famously, that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." The Court’s extensive discussion in Riley of the wide scope of data contained on smart phones and its ultimate concern for protecting the privacy of that information may well mean that preventing needless access to this information is the new “chief evil” protected by the Fourth Amendment. And the search warrant is the means of providing that protection.
A couple of other implications of Riley are not as apparent but are also potentially far-reaching. The first is whether this opinion casts doubt on whether the police may actually read non-digital, highly personal physical items found on the arrestee (alluded to earlier). Initially, it should be noted that while most discussions of the search incident to arrest doctrine assume that thorough examination of such items is permissible, the Court has never specifically ruled on the issue. The Court’s view of such examinations is far from clear in Riley, but the Court says in its opinion that cell phones “could just as easily be called …. Rolodexes, calendars[,] libraries, diaries, maps, or newspapers.” Of course, it is dangerous to read too much into this kind of comment, but one can be confident that defense attorneys will attempt to use this language to support arguments that the police may not look through clearly personal, sensitive items found on an arrestee’s person (absent an exigent circumstance requiring immediate determination of some factual matter likely to be contained in the item in question).
A second possible implication of the opinion is that it provides some additional (albeit minimal) evidence that the Court may be ready to re-examine two very important cases decided by the Supreme Court over 30 years ago. These cases created what is often referred to as the “assumption-of-risk” doctrine. In the first case, U.S. v. Miller, the Court held that the police were not engaged in a search under the Fourth Amendment when they obtained a record of bank deposits made by the defendant over a 4-month period. In the other case (referred to briefly above), Smith v. Maryland, the Court held that the police did not search when they obtained from a telephone company a list of the phone numbers called from a particular phone (called a pen register). The rationale behind these cases is that, when persons choose to share information with a bank or phone company, they assume the risk that this information will be shared with others. Another way of looking at it is that when this kind of information has been shared with another party, the persons sharing it have lost their expectation of privacy in the information.
In the recent GPS case, U.S. v. Jones, Justice Sotomayor wrote a concurring opinion in which she basically joined both the four Justices who joined Justice Scalia’s opinion for the Court and the four Justices who joined Justice Alito’s concurring opinion. In her discussion in that opinion of the nature of the privacy interest that persons have in the observation of their movements, Justice Sotomayor indicated that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Immediately following this statement, she cites Smith and Miller. No other Justice expressed specific approval of this statement, but her statement obviously suggests that she may well be willing to overturn Miller and Smith.
One of the government briefs in these cell phone cases cited Smith in support of its argument that the police should at least be able to read the call log on a cell phone seized incident to arrest. In response to this argument the Court said little more than “call logs typically contain more information than just phone numbers.” Nevertheless, for critics of the assumption of risk cases, this can be seen as some minimal support, at least, for Justice Sotomayor’s comment about the assumption of the risk doctrine (or the voluntary disclosure doctrine, as she refers to it). Admittedly, this provides far too little evidence to suggest that a majority of the Court is willing to do away with the assumption of risk doctrine, but there is also clearly a stronger basis for thinking this could happen than there was before the Jones case.
The Scope of Cell Phone and Computer Searches
While the holding in Riley and the implications of the decision as discussed above are clearly of great importance, it is obvious that when the police obtain a warrant to search a cell phone seized incident to an arrest, some very important questions arise. When the police obtain their warrant, what does it authorize them to do? Let’s say, for example, that the police have just arrested a suspect, an accountant, for embezzling from his company, and have obtained a warrant to search the cell phone they seized from the suspect’s person incident to arrest for evidence of that embezzling. May the police examine all files store on his phone? May the police examine all the photos stored on his phone? All his email traffic on the phone? Text messages? His call log? His calendar? May they examine files stored on “the cloud” to which the phone has access?
The Court seems to view cell phones – at least smart phones – as indistinguishable from laptops and personal computers. “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.” The Court explicitly recognizes the “immense storage capacity” of such phones. It is difficult to take issue with this approach. But herein lies the dilemma for the Court. Once a search of the cell phone (or a personal computer) has been authorized, how are the police to be prevented from an almost unlimited exploration of the suspect’s personal life?
Under the plain view doctrine, the police may seize anything they find through the use of their senses that they have probable cause to think is contraband or evidence of a crime so long as they can seize it from a place where they have a right to be. The problem is that once the police are authorized to search a computer (including smart phones), they will sometimes encounter incriminating evidence of other crimes while they are properly scouring the contents of the computer searching for the evidence identified in their warrant. In the normal physical search, even of a home, the size of the area to be searched imposes reasonable restrictions on what the police may legitimately see. However, when the search is for digital information contained on a computer, these limitations are absent.
One of the leading scholars on searches for digital evidence, Orin Kerr, calls this “the needle-in-a-haystack problem.” Kerr states the problem this way: “Because computers can store an extraordinary amount of information, the evidence of crime is akin to a needle hidden in an enormous electronic haystack. If no rules regulate how investigators look through the haystack to find the needle, any justification for a search may justify an invasive look through computer files that represent a small city’s worth of private information.” Kerr later points out that this problem is only going to get worse.
“In late 2004, the hard drive on a typical new home computer stored at least forty gigabytes of information, roughly equivalent to twenty million pages of text or about half the information stored in the books located on one floor of a typical academic library. By the time you are reading this article, the capacity no doubt will have increased; the storage capacity of new hard drives has tended to double about every two years. Given how much information can be stored in a small computer hard drive, the particularity requirement [in the Fourth Amendment] no longer serves the function in electronic evidence cases that it serves in physical evidence cases. Whatever remaining function it serves diminishes every year. Today, limiting a search to a particular computer is something like limiting a search to a city block; ten years from now, it will be more like limiting a search to the entire city.”
Kerr makes a very strong argument that the existing rules dealing with searches for physical objects do not usually translate well to searches for digital evidence. He argues further that the Court (and perhaps legislative bodies) should create special rules for digital searches. For example, perhaps the plain view doctrine should not be applied to searches of computers. Perhaps time limits should be established to limit the length of time that the police may keep a seized computer. Perhaps the police should be prohibited from copying the contents of a seized computer.
These ideas simply represent some initial thoughts. Courts and legislative bodies need to give careful consideration to how the rules for digital evidence searches should differ from the rules for searches of physical evidence. It will almost certainly take years, if not decades, for these rules to develop in great detail. In the meantime, the best the police can do is make their best judgments about what is reasonable when searching for digital evidence. They are probably well advised to consult their local prosecutors whenever possible. They are the ones, after all, who will have to justify to a judge the digital searches conducted by the police. Because Riley makes it clear that searches of cell phones are likely to be treated the same as searches of computers, the development of rules for conducting digital searches becomes even more important.
 Richard Re, “Symposium: Inaugurating the Digital Fourth Amendment,” SCOTUSBLOG (June 26,2014), retrieved from http://www.scotusblog.com/2014.06/symposium-inaugurating-the-digital-fourth-amendment/ on July 1, 2014.
 See Marc Rotenburg and Alan Butler, “Symposium: In Riley v. California, a Unanimous Supreme Court Sets Out Fourth Amendment for Digital Age, SCOTUSBLOG (June 26, 2014), retrieved from http://www,scotusblog.com/2014/06/symposium-in-riley-v-california-a-unanimous-supreme-court-sets-out-fourth-amendment-for-digital-age/ on July 1, 2014.
 Justice Scalia’s opinion took the approach that installing a GPS device on a car is a search because the installation of the device is a physical intrusion into a constitutionally-protected area. Justice Alito’ opinion adopted the position that “longer term” monitoring of a person’s movements with use of a GPS device (at least for most offenses) is a search because it intrudes upon expectations of privacy.
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.