STEVEN BETZ, ESQ.
Rains Lucia Stern, PC
An issue that continues to cause concern, confusion and anxiety for law enforcement officers, the general public, attorneys and jurists is to what extent the government can intrude into the data that we all store on our cellular telephones. Since smartphones began to see common use in the general public in 2007, the average American has been carrying voluminous private data with him or her in a small device that rarely is beyond arm’s reach.
One of the great legal questions fashioned in the wake of this technology is how to fit cellphones within our Fourth Amendment jurisprudence. These devices continue to cause concern for law enforcement in particular: As a law enforcement officer, when can my employer search my cellphone? As a law enforcement officer, when can I search a suspect’s cellphone? In a landmark — and unanimous — decision, the Supreme Court of the United States addressed whether a law enforcement officer may search an arrestee’s cellphone incident to arrest without a warrant. In the case, Riley v. California (2014) 537 U.S. ____, the Supreme Court recently held that an officer may not conduct a warrantless search of an arrestee’s cellphone under the search-incident-to-arrest exception to the Fourth Amendment’s general warrant requirement.
The Riley decision poses various questions for law enforcement professionals: Is this a bad or good case for law enforcement? If an officer cannot search a suspect’s cellphone incident to arrest, under what circumstances can he or she lawfully do so? Additionally, does the case have any bearing on whether an employer can search an officer’s personal cellphone — for example, during an Internal Affairs investigation?
The short answer is that the Supreme Court’s opinion is a good one. While the opinion limits searches incident to arrest, it leaves open other lawful avenues for police to conduct cellphone data searches that protect privacy while simultaneously permitting the police to do their job.
While this case has no direct bearing on administrative searches, it bodes well for peace officers — and labor in general — that the Supreme Court is taking a strong stand on the privacy of cellphones. Perhaps in the future, the Supreme Court’s recognition of the important and highly private nature of these devices will translate into high scrutiny for government employer-based searches. Indeed, the legacy of the Riley opinion may be that our courts will be forced to grapple with and reevaluate how we apply the Fourth Amendment to cellphone searches in many more contexts than the one the Riley court addressed.
New Technology, Old Rules
David Riley was stopped by the police for driving with expired registration tags on his vehicle. He was subsequently arrested for driving with a suspended license. While searching Riley’s vehicle, the officers discovered concealed and loaded firearms and items that suggested Riley was associated with the “Bloods” street gang. The arresting officers searched Riley’s person and found a smartphone. The officers subsequently searched through the data on Riley’s phone, specifically looking for any photographs of him posing with weapons. They ultimately discovered photographic evidence that linked Riley to a recent shooting. Riley was charged for playing a role in the shooting. His motion to suppress evidence found on his phone was denied.
On appeal, the Supreme Court addressed whether police officers may lawfully search the data on an arrestee’s cellphone incident to arrest. One of the greatest challenges for the justices was trying to place cellphone searches within the landscape of prior decisions and Fourth Amendment jurisprudence. The seminal case establishing searches incident to arrest as an exception to the warrant requirement is Chimel v. California (1969) 395 U.S. 752. In that case, the Supreme Court recognized the search-incident-to-arrest exception as reasonable based on the twin aims of officer safety (that is, removing weapons from the arrestee) and preventing the destruction of evidence.
Four years later, the Supreme Court decided United States v. Robinson (1973) 414 U.S. 218. In that case, officers searched through an arrestee’s cigarette package and discovered 14 capsules of heroin. The Supreme Court ruled then that the search incident to arrest was reasonable — and therefore lawful — because a “custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” In other words, the court noted that, despite Chimel’s justifications for the search-incident-to-arrest exception, an officer need not establish one of those concerns on a case-by-case basis. Based upon that language alone, it would appear that, pursuant to Robinson, a search of an arrestee’s cellphone would be per se reasonable.
No Justification for Searches Incident to Arrest
The Supreme Court, however, was clearly uncomfortable with applying the broad rule of Robinson — based upon the search of a cigarette package — to the search of a cellphone. Indeed, the Supreme Court begins its substantive analysis in Riley by noting that smartphones “are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided” (Riley, 573 U.S. at 9). Moreover, the court recognized that cellphones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy” (Id). Clearly, the old rules were not going to be easily applied to this new technology.
The court began its analysis by addressing the two justifications for searches incident to arrest: officer safety and destruction of evidence. The court found that it was highly unlikely that cellphone data could be used to physically harm someone, and found that that justification did not apply to cellphones. However, the court did recognize that it was conceivable that data contained on the phone could aid officers in saving a third party from some kind of imminent threat (imagine some action-flick scenario, where there is a bomb in downtown San Francisco and information regarding the location is on the phone). Should a peace officer face such a situation, the court recognized that exigent circumstances would justify a warrantless search, making the search-incident-to-arrest exception redundant.
Second, the court was not convinced that the concern about the destruction of evidence applied in cellphone cases. It is highly unlikely that the average criminal suspect would be able to remotely destroy the data on his or her cellphone, and thus any concern that data might magically disappear once in police hands was not sufficient enough to convince the court to extend the search-incident-to-arrest exception to cellphones.
Based upon these findings, the court was not inclined to find that the Chimel justifications for searches incident to arrest applied to cellphones.
Court Recognizes Highly Unique Nature of Cellphones
Despite its finding that Chimel did not justify the searches of cellphones, the court was forced to address a lingering problem: The court had already said that searches need not be justified in each case by the Chimel reasons when it decided Robinson. In order to reconcile the Robinson decision with its unwillingness to extend the search-incident-to-arrest exception to cellphones, the court determined that cellphones are truly unique and transcendental technology, and therefore the Robinson decision did not apply.
The government, defending the decision to search Riley, argued that the search of personal effects, such as Robinson’s cigarette package, was no different than searching the data on a cellphone that someone also carried on their person. The Supreme Court scoffed at that assertion, noting, “[t]hat 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” (Riley, 573 U.S. at 17).
The court’s chief concern was the immense data storage capacity of cellphones. Cellphones “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspaper” (Riley, 537 U.S. at 17). The court noted that before cellphones, “a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy…. Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read…. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months” (Id. at 17-18).
The fact that cellphones permit citizens to carry on their person an enormous amount of data about their private lives makes cellphones a piece of technology that has no parallel in human history. Justices sitting on the bench in the 1970s had no way of knowing that someday such technology would not only would exist, but also be in use by virtually every citizen in the United States. Therefore, the old decisions about searching personal effects clearly could not be applied to cellphones: That technology is like nothing any prior court had ever seen or could have contemplated. Indeed, the court even went so far as to say that a search of someone’s cellphone could potentially be more intrusive than a search of that same person’s home. Thus, given the great privacy interests at stake, the court declined to extend the search-incident-to-arrest exception to cellphone data.
Not a Bad Decision for Law Enforcement
The gut reaction from many peace officers may be that the Riley decision is bad for law enforcement because it may prohibit officers from effectively performing their duties. A closer reading of Riley, however, reveals that such fear is misplaced: Officers will still be able to do their jobs; they just need to use different constitutional tools at their disposal.
The Riley opinion was explicit that other avenues of searching cellphones remain available to law enforcement. The court specifically noted that if an officer has probable cause to believe that an arrestee’s cellphone contains data that could protect the safety of a third party (e.g., a “There’s a bomb in the city!” scenario), an officer may justify a search of the phone on an exigency basis. The court noted that such exigencies could include the prevention of destruction of evidence, the pursuit of a fleeing suspect and the assistance of injured persons.
Additionally, the Riley court noted that nothing would prevent officers from seizing a phone and getting a search warrant should they have probable cause to believe that the phone contained evidence relating to a crime. Thus, if an officer has a particularized basis to believe that evidence exists on the phone, he or she will still be able to justify a search.
The decision truly will only frustrate blind, incidental searches of arrestees’ cellphones. While that could conceivably allow some crime to go undetected, it is at the expense of the privacy rights that we all enjoy. As the court noted: “Privacy comes at a cost” (Riley, 573 U.S. at 25).
No Direct Relationship to Administrative Searches
A lingering question that may remain on officers’ minds is whether this decision has any bearing on whether government employers may search employees’ cellphones — for example, during an Internal Affairs investigation. Unfortunately, this case has no direct bearing on the issue of administrative searches. The decision specifically addressed the search-incident-to-arrest exception to the warrant requirement; it had nothing to do with searches in the work context.
However, there remains room for optimism. For the first time, the Supreme Court took a strong stance affirming the important, pervasive and highly private nature cellphones play in daily American life. Is it possible that this stance may somehow translate into higher protection for administrative searches in the future? Could the Supreme Court’s recognition of cellphone privacy make us rethink how searches of government employees’ property are conducted? The Riley court found that a cellphone was not like Robinson’s cigarette package; does that mean that the government office in O’Connor v. Ortega (1987) 480 U.S. 709, the case justifying employer searches, is similarly not the same as a cellphone?
In Ortega, the Supreme Court established an exception to the warrant requirement for reasonable government employer searches of employee property. In that case, the court specifically addressed searches of physical space, such as an office. The court’s opinion in Riley, giving heightened scrutiny to cellphone searches, may call into doubt what we now believe constitutes a reasonable search of an employee’s cellphone.
Cellphones are a new technology that have clearly changed American life in a way that perhaps has no historical precedent: Today, nearly each and every one of us carries data on a small device that includes years-long conversations with loved ones, years’ worth of calendar data, Internet data that shows the user’s general interests, contact lists that show who we communicate with and how often, and so on. The Riley opinion notes how cellphones contain vast amounts of data, even more than might be contained in someone’s home. Certainly, the average peace officer keeps more data on his or her cellphone than in his or her office. The Supreme Court noted in Riley that prior decisions could not have foreseen cellphone technology; thus, an older decision — like Robinson, which justified a search of a cigarette package — may not be adequate for laying the foundation for searches of cellphones. We can only speculate whether this line of thinking will call into question the reach of decisions like Ortega and their applicability to cellphone searches. However, legal observers can likely expect that there will be more to come regarding cellphones, technology and the reasonableness of government searches. Cellphones are likely to become ever more integral to modern life; the law will certainly need to adapt to this new reality.
About the Author
Steven M. Betz is an associate in Rains Lucia Stern, PC’s Collective Bargaining Practice Group as well as the Legal Defense of Peace Officers Practice Group. His practice is focused mostly on labor issues, including unfair practices, grievances and bargaining. Additionally, he has experience representing peace officers in administrative, disciplinary and critical incident matters.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.