Continuing our series of thought-provoking and relevant submissions from staff editors is the below brought to us by Matthew Hamblin. We greatly appreciate the hard work of our editors and their submissions. Below is a discussion of the recent case that was heard by the Supreme Court on April 29, 2014, regarding 4th Amendment search and seizure. We look forward to see the forthcoming Supreme Court opinion on this case.
David Leon Riley v. The State of California
The Fourth Amendment protects citizens from unreasonable searches and seizures made by the government. This requires a warrant supported by probable cause unless there are exigent circumstances that justify a warrantless search. During a lawful arrest, a police officer may conduct a lawful warrantless search incident to that arrest to protect the officer or to prevent the destruction of incriminating evidence. Items within direct control or immediately associated with the defendant’s person may be search at the time of the arrest. Personal property immediately associated with the defendant may be searched fully in an inventory search or booking search. Mr. Riley was lawfully arrested with his digital smartphone in his hand. There was a cursory search on site and an invasive search later at the station. Does the station search comport with the Fourth Amendment because Riley’s smartphone immediately associated with his person?
In this case, the Supreme Court will approach the issue of whether a digital smart phone is a within the “direct control” standard illustrated in U.S. v. Chadwick or is under the “immediately associated with defendant’s person” standard illustrated in US v. Edwards when seized in a warrantless search. Is a smartphone’s digital storage similar to a footlocker found in a car, or is it similar to clothing or a wallet found on an arrestee?
The California Supreme Court held that Riley’s phone was “immediately associated with the defendant’s person.” The Court applied reasoning from People v. Diaz, in which the court said that a cell phone was personal property at the time of the arrest and is therefore subject to a warrantless search at the time of his lawful arrest and during the administrative processing at the station. The court said that, “a delayed search of an item immediately associated with the arrestee’s person may be justified as incident to a lawful custodial arrest without consideration as to whether an exigency for the search exists.” People v. Riley, Cal. App. 4th Dist. (2013); citing People v. Diaz, (2011) 51 Cal.4th 84. Petitioner Riley requested Certiorari with the Supreme Court, claiming that the phone was not immediately associated with his person and the subsequent search of the phone’s digital contents was too remote in time and place from his arrest to comport with the Fourth Amendment.
After an arrest arising out of a “dribe-by” shooting, police observed Lincoln Park gang indicia consistent with membership. An officer made a cursory search of Riley’s smartphone at that time. The officer noticed that each entry was noted with a “ck.” Typically, this nomenclature is used to signify the user as a “Crip Killer.”
A detective later fully searched the phone at the police station two hours later. He was aware that it was common practice for gang members to take videos or pictures of themselves with firearms. The phone’s digital contents provided more than pictures of firearms. The police found video clips of gang initiation with Riley’s car visible in the background. They also uncovered phone records showing that the phone was at the location of the “drive-by” and the location where Riley’s vehicle had been found.
Riley was charged with several serious offenses and later moved to suppress the evidence from the phone because the full search of the phone was made too “remote in time and place from the arrest.”
The Fourth Amendment prohibits warrantless searches incident to an arrest that are “too remote in time and place” of items merely within “the arrestee’s immediate control.” United States v. Chadwick, 433 U.S. 1. However, a search may be remote in time and place of an item “of the personal property immediately associated with the person of the arrestee.” United States v. Edwards, 415 U.S. 800. An officer in a search incident to a lawful arrest may “conduct a full search of the person [of the arrestee].” United States v. Robinson, 414 U.S. 218. However, the search incident to an arrest exception must be “reasonably limited” to protect police from hidden weapons and to “prevent the destruction of evidence” United States v. Chimel, 392 U.S. 752, 764 (1969).
This approach is justified in Maryland v. King. There, the Court explained that that government has an important interest in the warrantless searches of persons arrested for serious crimes. Maryland v. King, 133 S.Ct. 1958 (2013). Once arrested the arrestee has a diminished expectation of privacy in objects found on his corporeal person such as his DNA for testing. Id.
In Chadwick, the Courtinvalidated a search of a locked 200-pound footlocker an hour and a half after its seizure incident to the arrest. United States v. Chadwick, 433 U.S. 1. There, the Court said that while the locker could have been searched at the time of the arrest, an hour and a half was too far removed from the time and place of the arrest. Id. The Court distinguished the footlocker from the person of the arrestee holding that it was merely in the arrestee’s direct control and not directly associated with his person. Id. The California Supreme Court in People v. Diaz, held that the Fourth Amendment allows officers to search the entire smartphone’s digital contents since the phone is personal property immediately associated with the arrestee. People v. Diaz, 244 P.3d 501, 510 (Cal. 2011).
However, The First Circuit court in United States v. Wurie held that police officers are forbidden from searching the digital contents of a cell phone incident to an arrest without a warrant. United States v. Wurie, _ F.3d __, 2012 WL 2129119, at *11 (1st Cir. May 17, 2013). These courts rely on the Chadwick rational and hold that the information held on a smartphone is not similar to information held in a physical closed container found on the person during a lawful arrest.
On one hand, Riley argues that the Edwards analogy does not apply. Indeed, a smartphone has the capacity to store an entire warehouse worth of private information similar to a diary or a computer. This amount of information goes beyond what a person could carry on his person. The government may have access to all of a person’s contacts, years of past texts, email correspondence and calendared appointments if all of the information within a smartphone may be seized. This would include photographs, personal videos, and other information that might be held on a computer such as medical records and banking activity accessed by the internet. Thus, it cannot be said that all of the content’s on a person’s phone can be deemed “immediately associated” with the person carrying the phone. The seizure of this amount of information would be unreasonable invasion of privacy per the Fourth Amendment.
A full search of a smartphone’s content would be equivalent to a general warrant because it would be indistinguishable from searching an entire warehouse or home full of information intended to be kept private by the owner. It would be the modern day equivalent of a general search. Should the police have that level of access to a person’s life without a specific legal warrant detailing what incriminating evidence the police are seeking?
Further still, the nature of the digital contents of a smart phone diminish the government’s justification found in Chimel in conducting a search incident to an arrest. Further still, there is not inventory search justification. Unlike tangible items that may go missing when containers and vehicles are impounded, the digital content’s on a phone are unlikely to go missing. Unlike tangible weapons that could harm an arresting officer or contraband that could be destroyed before a search, digital items will remain on the phone or in the provider’s servers. Either of which could be searched with a valid legal warrant later.
The search of a smartphone may not further the government interests that justify a search incident to an arrest and impinges upon personal privacy because of the sheer amount of information that can be accessed by the smartphone. That amount of information would not comport with the Framer’s original intent to prohibit general warrants.
On the other hand, the State argues that the digital contents of the phone are no different from physical documents found in a container associated with a person at the time of the arrest.
A cell phone is personal property. As the California Supreme Court stated, personal property found on a person at the time of his arrest may be subject to a warrantless search. Since the phone was in Riley pocket at the time of his arrest it can be considered “immediately associated with his person.” Like the clothing taken form the defendant in Edwards, Riley’s cell phone was an item of personal property on his person at the time of his lawful arrest.
Furthermore, a cell phone can readily identify an arrestee as easily as the DNA taken from the defendant in King. There is no requirement that information gained in a search incident from an arrest be simply used as identification. Information gained by analyzing swabbed DNA may provide evidence of drug use or any number of things. Information contained in a smartphone may be used for identification and yet still be used by the prosecution since that data was seized in the arrest.
The Court’s opinion will turn on whether the digital information contained in a smartphone is to be considered “within the direct control” of an arrestee or whether that information was “immediately associated” with the person of the arrestee. This of course will turn on how to court views a smartphone. The phone itself is personal property. However, the data found within that phone can lead to a treasure trove of information that a defendant has manifested an intent for it to remain private. Therefore, the phone itself may be view as “immediately associated” with Riley. On the other hand, the data within may be considered within “the direct control” of Riley.
Overall, how data is legally treated is a very ripe issue. Smartphones have become pervasive through our society. The personal data stored on these devices and servers in which those devises have access is immense. Government agencies from the local police to the NSA use them on a daily basis. The trend has been to let the government have more access to this information for effective surveillance and police work. How the Court decides this case will go to showing the extent of that continuing trend.