In a unanimous opinion, the Supreme Court established a new categorical rule for a search of a cell phone seized during an arrest, holding that a search warrant should normally be obtained absent application of another Fourth Amendment exception such as exigent circumstances; the Court concludes that cell phones are “quantitative[ly] and a qualitative[ly]”different than “other objects that might be kept on an arrestee’s person”; ten initial observations and questions are noted from the recent ruling, in Riley v. California (No. 13-132) and United States v. Wurie (No. 13-212)
Last week, on June 25, 2014, the Supreme Court issued a unanimous decision restricting the ability of law enforcement to search a cell phone under the Fourth Amendment that is seized during an arrest. The opinion was authored by Chief Justice John G. Roberts, Jr. Justice Samuel Alito issued a separate concurring opinion.
Opinion Issue And Holding
The question presented in the case was “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” Riley, 573 U.S. at _. The Court held that a search warrant should normally be obtained to search a cell phone. As the opinion explained:
Cell phones have become important tools in facilitating coordination and communication among members of crim¬inal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost. Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is “an important working part of our machinery of government,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.” Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971).
Riley, 573 U.S. at _.
Summary Of The Two Cases (Riley and Wurie)
- In Riley v. California, the petitioner was stopped for a traffic violation (expired tags) and in the process of impounding his car, an inventory search was conducted. That search of the vehicle came across hidden weapons, leading to his arrest. The police then conducted a search incident to this arrest and in that process came across his "smart phone," a touch-screen cell phone in a pocket. The officers searched the phone at the scene and conducted a more detailed search of the phone at the station. In both, they came across various messages, photos and phone numbers that led officers to tie the petitioner to gang and drug activities. In affirming his conviction and rejecting the petitioner's Fourth Amendment illegal search claims, the California Court of Appeal concluded that the evidence, including that from the phone, was constitutionally sound.
- United States v. Wurie, the second case involved in the decision involved an arrest of the petitioner after police observed him at a drug deal. At the station house he was searched and a "flip phone" was discovered on his person. Police realized that the phone was receiving various calls, from this discovery they observed the calls were connected to “my house,” apparently the petitioner’s residence. The police then secured a search warrant for the petitioner's apartment. This search recovered drugs as well as a gun, ammunition and cash. The petitioner was unable to persuade the trial court to suppress the evidence from that search. His appeal after he was convicted was more successful as the court was persuaded that the search of the contents of the defendant's phone violated his Fourth Amendment rights and that a warrant was required in order to view any data on the petitioner's cellphone.
Ten Initial Case Observations And Questions
As some initial key observations and questions, the opinion is a significant Fourth Amendment case in several respects. Ten initial issues are summarized below:
Continuing Trend Concerning Privacy And The Collection Of Digital Evidence?
First, unlike other recent Fourth Amendment cases, the decision was unanimous. Compare Maryland v. King, 569 U.S. _, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (five to four ruling upholding the post-arrest collection of a DNA sample for individuals charged with a violent crime).
Given that the lower courts were previously divided on the issue, it is ironic to unanimity of the Supreme Court. See generally Circuit Split: Courts Divided On Search Of Cell Phones Incident To Arrest (“The Fourth, Fifth and Seventh Circuits along with the Georgia, Massachusetts, and California Supreme Courts have upheld the seizure of this evidence. The First Circuit and Florida and Ohio Supreme Courts have not. The Eleventh Circuit has noted an open issue.”) (collecting cases).
Second, the opinion appears to be part of a recent trend in which digital evidence is treated differently than other objects under Fourth Amendment analysis, as noted earlier in the year by the Federal Evidence Blog. See Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence? The unanimous ruling signals the strongest consensus possible by the Court concerning the consideration of privacy issues involving digital data. Will this trend continue in other Fourth Amendment cases? As noted below on the fourth observation, the Court finds that cell phone digital data is both “quantative[ly]” and “qualitative[ly]” different than other objects.
Open Issue On "Aggregated Digital Information" Noted
Third, the Court noted an open issue in footnote number 1: “Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.” Is the Court signaling an interest in considering this issue down the road?
Preference For Search Warrant: Presumption Of Reasonableness
Fourth, once again the Court underscores the general preference and presumed reasonableness to obtain a search warrant to comply with the Fourth Amendment. RileyVernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (“Where a search is undertaken by law en¬forcement officials to discover evidence of criminal wrong¬doing, . . . reasonableness generally requires the obtaining of a judicial warrant.”); Johnson v. United States, 333 U.S. 10, 14 (1948) (noting a role of search warrant “drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime”)). Where a search warrant is not obtained, the reasonableness of the search under the Fourth Amendment will be determined by whether a recognized exception applies.
Cell Phones Are Quantitatively And Qualitatively Different
Fifth, with regard to the Fourth Amendment exception for search incident to arrest, the Court established a new categorical rule for cell phones. Specifically, a search warrant will normally be required absent exigent circumstances or another applicable exception under the Fourth Amendment. See also Riley, 573 U.S. at _ (noting in applying prior precedent the issue is “how the search incident to arrest doctrine applies to modern cell phones”).
Repeatedly, the Court noted that cell phones are distinct from other physical objects that may be seized during an arrest. As the Court explained:
But while Robinson’s categorical rule strikes the appro¬priate balance in the context of physical objects, neither of its rationales has much force with respect to digital con¬tent on cell phones. On the government interest side, Robinson concluded that the two risks identified in Chimel—harm to officers and destruction of evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Rob¬inson regarded any privacy interests retained by an indi¬vidual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.
We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.
Riley, 573 U.S. at _; see also id. at _ (“Robinson is the only decision from this Court applying Chimel to a search of the contents of an item found on an arrestee’s person.”); id. at _ (Alito, J., concurring) ("I agree that we should not mechanically apply the rule used in the predigital era to the search of a cell phone.").
The two cases heard by the Court involved different types of cell phones. In Riley, a “smart phone” was used, which the Court described as “a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity.” In contrast, the Wurie case concerned an older “flip phone,” which is “a kind of phone that is flipped open for use and that generally has a smaller range of features than a smart phone.” Riley, 573 U.S. at _. Both phones implicated the collection of digital information that was unavailable when the earlier search incident to arrest cases were decided. Riley, 573 U.S. at _ (“Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided.”).
The Court contrasted digital information with other physical objects that may be seized during an arrest and concluded that digital data from a cell phone is both “quantitative[ly]” and “qualitative[ly]” different. The Court highlighted four quantitative distinctions:
First, a cell phone collects in one place many distinct types of information—an ad¬dress, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. 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 communi¬cations with Mr. Jones for the past several months, as would routinely be kept on a phone.
Finally, there is an element of pervasiveness that char¬acterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensi¬tive personal information with them as they went about their day. Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception.… Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.
Although the data stored on a cell phone is distin¬guished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individu¬al’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been….
Riley, 573 U.S. at _ (emphasis added). Further, cell phones are qualitatively different because they can be used to access data stored at other locations.
In establishing the categorical rule concerning cell phones seized during an arrest, the Court reviewed and distinguished its prior search incident to arrest cases, including:
- United States v. Robinson, 414 U.S. 218 (1973) (during arrest and pat down, search of cigarette package inside defendant's pocket resulting in discovery of heroin was reasonable)
- Arizona v. Gant, 556 U.S. 332, 343 (2009) (authorizing a warrantless search of a vehicle “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search”; however, based on “circumstances unique to the vehicle context,” as a separate exception, a warrantless search of a the passenger compartment may be undertaken “when it is ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle’”) (citation omitted).
- Chimel v. California, 395 U.S. 752, 763, 768 (1969) (warrantless search of arrestee’s residence did not fall within the search incident to arrest exception since the search was not necessary to protect officer safety or to preserve)
- See also Weeks v. United States, 232 U.S. 383, 392 (1914) (dicta noting “the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime”)
Unsubstantiated Government Concerns About Remote Wiping And Encryption
Sixth, the unanimous Court found unpersuasive generalized government concerns about the interference or destruction of evidence based on either “remote wiping” or “data encryption.” In the Court’s view, the government failed to support these grounds and provided largely “anecdotal” information. The Court also cast doubt on whether avoiding either concern would be successful during a search incident to arrest as the officer attended to other matters involving the arrest.
As the Court explained, “remote wiping” results “when a phone, connected to a wireless network, receives a signal that erases stored data.” For example, “a third party” might transmit “a remote signal” or a cell phone may be “preprogrammed to delete data upon entering or leaving certain geographic areas (so-called “geofencing”).” Riley, 573 U.S. at _ (citing Dept. of Commerce, National Institute of Standards and Technology, R. Ayers, S. Brothers, & W. Jansen, Guide¬lines on Mobile Device Forensics (Draft) 29, 31 (SP 800–101 Rev. 1, Sept. 2013)). The Court distinguished that remote wiping relies on the conduct of third parties and not the arrestee.
In contrast, “encryption” securely protects data by locking the cell phone rendering it “‘unbreakable’ unless police know the password.” Riley, 573 U.S. at _ (quoting Brief for United States as Amicus Curiae in No. 13–132, p. 11). As the Court observed, encryption may result from “the ordinary operation of a phone’s security features, apart from any active attempt by a defendant or his asso¬ciates to conceal or destroy evidence upon arrest” and may “lock at the touch of a button or, as a default, after some very short period of inactivity.” Riley, 573 U.S. at _ (citations omitted). The Court noted that “data encryp¬tion is even further afield” than remote wiping and the facts did not support concerns over encryption. In fact, the encryption issue was not presented “until the merits stage in this Court, and has never been considered by the Courts of Appeals.” Riley, 573 U.S. at _.
Guidance On Preserving Cell Phone Data During An Arrest
Seventh, the Court explained that law enforcement may take certain limited steps for officer safety or to preserve data when cell phones are seized during an arrest. For example, with regard to safety concerns, the Court clarified that:
Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.
Riley, 573 U.S. at _.
Law enforcement may secure the cell phones to prevent the destruction of evidence. There was no dispute in the case on this point. As the Court observed on this factor:
Both Riley and Wurie concede that officers could have seized and secured their cell phones to prevent destruction of evidence while seeking a warrant. See Brief for Petitioner in No. 13–132, p. 20; Brief for Respondent in No.13–212, p. 41. That is a sensible concession. See Illinois v. McArthur, 531 U.S. 326, 331–333 (2001); Chadwick, supra, at 13, and n. 8. And once law enforcement officers have secured a cell phone, there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.
Riley, 573 U.S. at _, n.2. Additionally, if the cell phone is found in an unlocked state, officers
may be able to disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data. See App. to Reply Brief in No. 13–132, p.3a (diagramming the few necessary steps). Such a preven¬tive measure could be analyzed under the principles set forth in our decision in McArthur, 531 U.S. 326, which approved officers’ reasonable steps to secure a scene to preserve evidence while they awaited a warrant. See id., at 331–333.
Riley, 573 U.S. at _. Further, to prevent the risk of remote wiping, the officers can take steps to disconnect the cell phone from a network:
There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they canleave a phone powered on and place it in an enclosure that isolates the phone from radio waves. Such devices are commonly called “Faraday bags,” after the English scientist Michael Faraday. They are essentially sandwich bags made of aluminum foil: cheap, light¬weight, and easy to use. They may not be a complete answer to the problem, but at least for now they provide a reasonable response. In fact, a number of law enforcement agencies around the country already encourage the use of Faraday bags.
Riley, 573 U.S. at _ (citations omitted). Finally, as noted in the next section, a search may be justified if exigent circumstances can be established.
Exigent Circumstances Exception
Eighth, the Court confirmed that a warrantless search may be warranted by exigent circumstances.
In light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone. The defendants here recognize—indeed, they stress—that such fact-specific threats may justify a warrantless search of cell phone data. See Reply Brief in No. 13–132, at 8–9; Brief for Respondent in No. 13–212, at 30, 41. The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case. See [Missouri v.] McNeely, [569 U. S. __ (2013)] (slip op., at 6).
Riley, 573 U.S. at _ (footnote omitted); see also id. at _, _ (citing Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 298–299 (1967) (“The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.”)).
The Court noted that the exigent circumstances argument was not presented by the government in Wurie although the First Circuit dissent noted the doctrine may have applied. Riley, 573 U.S. at _, n.2; see also United States v. Wurie, 728 F.3d 1, 1 (1st Cir. 2013) ("Because the government has not argued that the search here was justified by exigent circumstances or any other exception to the warrant requirement, we reverse the denial of defendant appellant Brima Wurie's motion to suppress, vacate his conviction, and remand his case to the district court."); Wurie, 728 F. 3d at 17 (dissenting opinion of Howard, J.) (noting availability of exigent circumstances exception as a separate basis after repeated calls by "my house" were made to the cell phone which "provided an objective basis for enhanced concern that evidence might be destroyed and thus gave the police a valid reason to inspect the phone").
Ninth, Justice Samuel Alito issued a concurring opinion. While he "agree[d] with the Court that law enforcement officers, in conducting a lawful search incident to arrest, must generally obtain a warrant before searching information stored or accessible on a cell phone," he raised two separate points. First, he questioned the scope and premise of the search incident to arrest exception. Specifically, he is "not convinced at this time that the ancient rule on searches incident to arrest is based exclusively (or even primarily) on the need to protect the safety of arresting officers and the need to prevent the destruction of evidence." Riley, 573 U.S. at _ (Alito, J., concurring).
Second, he suggested that legislatures could enact laws concerning this area:
While I agree with the holding of the Court, I would reconsider the question presented here 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 of information or perhaps other variables.
Riley, 573 U.S. at _ (Alito, J., concurring).
Role Of The Solicitor General Office
Finally, it is interesting to note the role of the Solicitor General's Office in the Wurie case. Deputy Solicitor General Michael Dreeben participated in the appeal before the First Circuit. After the circuit opinion, he participated in the petition to rehear the case en banc. See United States v. Wurie, 728 F.3d 1 (1st Cir. May 17, 2013); Wurie Petition to Rehear the Case Banc; United States v. Wurie, 724 F.3d 255 (1st Cir. 2013) (declining to rehear the case). The Solicitor General's office filed the petition for certiorari review in Wurie and participated as an amicus curiae in the Riley case.
Some interesting questions are raised about the presentation of some of the issues in the Wurie case. Did the government elect not to raise the exigent circumstances exception in the Wurie case? Did the government conclude that the exigency facts were sufficiently strong to raise the issued in the Supreme Court? If the issue had been raised, would the Court have been more or less likely to grant certiorari review in the Wurie case? If the case had been considered by the Court, would it have presented a chance to demonstrate application of the exigent circumstances exception for cell phones?
Copies of the briefs, lower court rulings and other materials are available in the
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