On June 26, 2014, the headline in The New York Times read, “Justices, 9–0, Rule Cellphone Search Needs a Warrant.” The day before, the Supreme Court had announced its decision in Riley v. California, ___S.Ct.___, WL 2864483 (2014), holding that police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Chief Justice Roberts authored the opinion of the Court. All of the other Justices except for Justice Alito joined in the opinion. Justice Alito wrote an opinion concurring, in part, and concurring in the judgment. Few would have predicted that there would have been no dissents.
A. The New York Times’ Headline Exaggerates What the Court Held
The ruling of the Court was not, however, as broad as The New York Times’ headline would have suggested. Toward the end of opinion, Chief Justice Roberts writes what I would suggest might be called “A Memorandum to Law Enforcement Officers and Prosecutors” in which he says:
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, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U.S., at ___, 133 S.Ct., at 1561–1563; id., at ___, 133 S.Ct., at 1573 (Roberts, C. J., concurring in part and dissenting in part) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”) [emphasis added].
[Note: We aren’t that sophisticated in Smith County!]
Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. “One well-recognized exception applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’” Kentucky v. King, 563 U.S., at ___, 131 S.Ct., at 1856 (quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)). Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. 563 U.S., at ___, 131 S.Ct. 1849. In Chadwick, for example, the Court held that the exception for searches incident to arrest did not justify a search of the trunk at issue, but noted that “if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage.” 433 U.S., at 15, n. 9, 97 S.Ct. 2476
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 McNeely, supra, at ___, 133 S.Ct., at 1559 [emphasis added].
B. The Facts in Riley and Wurie
For those who have not read the Court’s opinion, certiorari had been granted by the Court in two cases that were consolidated for argument: Riley v. California and United States v. Wurie.
The facts in Riley (taken from the syllabus) are as follows:
In No. 13–132, petitioner Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted. The California Court of Appeal affirmed.
The facts in Wurie (taken from the syllabus) are as follows:
In No. 13–212, respondent Wurie was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone from Wurie’s person and noticed that the phone was receiving multiple calls from a source identified as “my house” on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the “my house” label, and traced that number to what they suspected was Wurie’s apartment. They secured a search warrant and found drugs, a firearm and ammunition, and cash in the ensuing search. Wurie was then charged with drug and firearm offenses. He moved to suppress the evidence obtained from the search of the apartment. The District Court denied the motion, and Wurie was convicted. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions.
C. Cell Phone Searches Have Been a Hot Topic in Both Federal and State Courts
It is not surprising that the Court’s opinion in Riley has received such coverage. The search of a cell phone has been a hot topic. The numbers support this observation. I ran WestLaw queries in the allfeds and allstates databases and got these results:
- search /s “cell phone” /s incident /s arrest—in the allfeds database, there were 184 cases; in the allstates database, there were 132 cases.
- search /s “cell phone”—in the allfeds database, there were 1,688 cases; in the allstates database, there were 1,513 cases.
D. Chief Justice Roberts’ Comments About Cell Phones
These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which 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. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. See A. Smith, Pew Research Center, Smartphone Ownership—2013 Update (June 5, 2013). Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided.
***
Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. 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. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
***
Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.
Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.
E. Chief Justice Roberts Framed the Issue before the Court
The two cases before us concern the reasonableness of a warrantless search incident to a lawful arrest. In 1914, this Court first acknowledged in dictum “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.” Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652. Since that time, it has been well accepted that such a search constitutes an exception to the warrant requirement. Indeed, the label “exception” is something of a misnomer in this context, as warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant. See 3 W. LaFave, Search and Seizure § 5.2(b), p. 132, and n. 15 (5th ed. 2012).
F. Chief Justice Roberts Slammed the Government’s “Materially Indistinguishable Argument”
The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. Brief for United States in No. 13–212, p. 26. That 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. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom [emphasis added].
G. Chief Justice Roberts Expanded the Logic Behind a Quote from Learned Hand
In 1926, Learned Hand observed (in an opinion later quoted in Chimel ) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F.2d 202, 203 (C.A.2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.
***
H. Chief Justice Roberts Concluded His Opinion with References to James Otis and John Adams and “General Warrants” and “Writs of Assistance”
Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’ speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630, 6 S.Ct. 524. The fact that technology now 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. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.
I. Chief Justice Roberts’ Holding in Light of the Trilogy of “Search Incident to the Arrest” Cases
Judge Roberts examined the facts in Riley and Wurie in the light of Chimel v. California, 89 S.Ct. 2034 (1969); Robinson; United States v. Robinson, 94 S.Ct. 467 (1973); and Arizona v. Gant, 129 S.Ct. 1710 (2009), and declined to extend Robinson to searches of data on cell phones, and held instead that officers must generally secure a warrant before conducting such a search.
THIS CASE IS TOO IMPORTANT FOR ME TO TRY TO SUMMARIZE ANY MORE THAN I HAVE ALREADY DONE. THIS IS ONE CASE THAT EVERY LAWYER WHO PRACTICES STATE OR FEDERAL CRIMINAL LAW MUST READ IN ITS ENTIRETY.
J. “Unanimous” Opinions
On July 2, 2014, there appeared in The New York Times an article by Adam Liptak entitled, “Compromise at the Court Veils Its Rifts.” In the article, we find these two sentences: “While the Court’s level of agreement this term was authentically high, the numbers overstate the case.” “A lot of unanimity is ersatz,” said David A. Strauss, a law professor at the University of Chicago.
The accuracy of Mr. Liptak’s thesis is shown by these two comments from Judge Alito’s concurring opinion:
First, I am 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. . . . This rule antedates the adoption of the Fourth Amendment by at least a century.
***
This brings me to my second point. 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 [emphasis added].
My Thoughts
- I really enjoy reading the opinions written by Chief Justice Roberts. Even when I disagree with his holding or his logic, I am impressed by the quality of his writing. In Riley, he goes from the visitor from Mars to Learned Hand to James Otis and John Adams—and it all makes sense.
- So what’s next? The search cases based on exigent circumstances will probably be next on the horizon. We can only wait and see what law enforcement officers will say in support of their decisions to do searches without warrants because of exigent circumstances. These should keep us busy for a long, long time.
- So what else should we be concerned about because of Riley? How about ipads and other tablets? It seems to me that the same rules should apply for them as for cell phones. Once again, we can wait and see.
