The Supreme Court’s Riley Decision Won’t Change Much In The Field (Guest Blog Post)
[Eric's Note: This guest blog post is from my colleague Kyle Graham, who teaches and writes in the area of Criminal Procedure, Evidence and others. I'm pleased to share his expert take on the Riley ruling, followed by a few comments from me at the end.]
This Wednesday, the United States Supreme Court issued a decision that disposed of two cases, Riley v. California and United States v. Wurie. Riley (the lead case) and Wurie both presented the issue of whether a warrantless search of an arrested suspect’s cellular phone could be justified as part of a “search incident to arrest,” a long-established exception to the warrant requirement. In an opinion authored by Chief Justice Roberts, joined by seven other justices, the Court answered this question with a straightforward “no.” The opinion was effectively unanimous; Justice Alito, while writing separately, agreed with the other justices that the search incident to arrest exception did not accommodate cell-phone searches.
The immediate result of Riley is that officers will have to obtain a warrant, or rely upon another warrant exception, if they want to search an arrested suspect’s cell phone and then use any resulting evidence at that person’s subsequent trial. More broadly, many commentators have read the Court’s decision as a sign that the justices finally “get it,” with “it” being the exceptional nature of modern data-storage and communications technologies, and the need for greater protections vis-à-vis surveillance, aggregation, and intrusion by law enforcement.
Since you’re reading this blog, I assume all of the above is old news to you, and that most of you are cheering the decision as a big “win” for privacy rights. It certainly will be seen as such in the long run, if it ultimately provides the wellspring for the proposition that the Court will apply fundamentally different rules to searches of computers and cellular phones than have traditionally adhered to searches of other forms of personal property. That is one possible reading of the Riley decision, and perhaps the most persuasive one. But from this vantage point, it’s impossible to know whether the decision someday will be appreciated as the start of Something Big, or as something less. The field of criminal procedure has seen many seemingly momentous decisions drained of importance over time, as law enforcement adopts alternative investigatory techniques and courts moderate the consequences of earlier rulings through decisions that pare back available remedies.
In the short run, it’s more apparent that the Riley holding will have a fairly modest impact on day-to-day law enforcement. The main reasons being:
1. Search Warrants. As noted above, Riley countenances—indeed, encourages—searches of cell phones upon direction of search warrants (as already occurs quite regularly; cell phones often are included among the items to be seized in search warrants for premises). These search warrants often won’t be especially difficult to obtain–since the very reasons that Chief Justice Roberts gives in Riley for why cellular phones are so vital to everyday life, and searches of them so threatening to privacy, also explain why probable cause (under a “fair probability” standard) commonly will exist that they contain evidence of the crime(s) under investigation. There will be some close cases, of course, the results of which should be interesting. For example, could a warrant have issued in Riley, calling for a search of the smart phone at issue for additional evidence relating to the concealed, loaded handguns found underneath the hood of the defendant’s car?
In terms of barring any search of a cell phone, Riley‘s warrant requirement probably will have the most bite in a few types of cases: (1) those involving arrests for offenses as to which evidence is unlikely to be found on a phone (which are probably few and far between these days, given the capabilities of modern smart phones), or as to which search warrants may be unavailable as a matter of state or federal law (some states prohibit the issuance of warrants for swaths of misdemeanor crimes); and (2) those involving arrests on outstanding warrants for long-ago crimes, as to which any warrant affidavit would relate “stale” information. But as to the former, most of the crimes involved would be quite minor, and I suspect that even before Riley, few police officers searched the cell phones of persons arrested for such picayune offenses. Why bother – particularly when advancing cell-phone technology meant that, more and more often, a search would require time-consuming navigation around a password? Except in rare instances, the game wouldn’t be worth the candle.2. Alternative Warrant Exceptions. As other commentators have observed, in cases where officers either can’t or won’t get a warrant, they can try to obtain the suspect’s consent to search a cell phone. (“You don’t mind if I take a look at your phone, do you? Great. So, what’s the password?”) Already, officers are trained to seek consent for just about any search, both as a courtesy and as a safeguard in the event that the intrusion can’t be justified on some other basis. The Riley decision also acknowledges that other warrant exceptions, such as exigent circumstances, may apply to a cell-phone search. Situations involving exigent circumstances aren’t going to be as common as requests for consent will be, but they’re not too difficult to hypothesize. Picking up a suspicious incoming call on a suspect’s phone during a drug bust might qualify, for example.
3. Standing. While hinting that the Court may find an expectation of privacy in certain types of electronic communications, Riley didn’t alter fundamental rules of standing. The decision still leaves upon the possibility that officers may search a cell phone without a warrant to obtain evidence to use against someone other than the arrestee. Such a search would violate the arrestee’s rights, and it goes without saying that officers shouldn’t do it. But under prevailing law, the search wouldn’t necessarily implicate the rights of a third party, even if evidence found on the phone were used against the latter person at a criminal trial. Therefore, if police were to unlawfully search A’s phone, and find on it a message-to-self that says, “meet with B tomorrow to discuss drug sale,” that message could still be used against B at her trial for drug distribution (assuming it clears the hearsay bar).
4. “Good Faith.” This observation has less to do with future investigations than the adjudication of cases premised on earlier searches. It’s not crystal-clear that Riley will benefit other criminal defendants who may move to suppress evidence seized in cell-phone searches that predated the decision. There exists an exception to the exclusionary rule known as “good faith,” which has been applied in a variety of contexts to permit the admission of evidence at a criminal trial notwithstanding a misstep by police. The Supreme Court recently held that the “good faith” exception applies in situations where law enforcement officers conducted a search in conformance with then-binding, but subsequently modified or overturned, appellate precedent. The government certainly will press this exception (as well as other exceptions to the exclusionary rule) going forward in cases where they collected cell-phone evidence in a manner contrary to Riley. The precise contours of the good-faith exception are unclear, however, making this argument anything but a slam-dunk for the government.
In short, while there’s a tendency to chalk up each “blockbuster” Supreme Court case as a big win for one side and a huge loss to the other, in criminal procedure the system has a way of regressing to the mean. Riley may be a blockbuster case, but its importance owes more to its potential status as a harbinger of things to come, than to its immediate consequences.
One final thought. I may be wrong about this, but my sense is that police will receive the Riley decision with relative equanimity. As previously mentioned, as compared to, say, the Court’s decision in United States v. Jones — the GPS case from 2012, which held that trespassory use of a GPS device by law enforcement amounted to a Fourth Amendment “search” — the result in Riley seems unlikely to stymie very many nascent investigations, at least those that officers would regard as worth undertaking. I suspect most officers will appreciate Riley as a sensible limitation upon the windfall that cell phones have heretofore provided to law enforcement. No officer in her right mind would have predicted, a quarter-century ago, that in 2014 the vast majority of U.S. residents would walk around with devices on their person that would track their movements, facilitate the taking of incriminating “selfies,” and record their personal and business transactions for posterity in a way that months of skilled gumshoeing could never replicate. In effect, up to this point cell phones have given patrol officers access to information previously knowable only by detectives, if anyone. Police officers generally appreciate when they’re playing with the house’s money, and Riley only asks for the return of some of these chips.
1) The opinion talks a lot about the importance and ubiquity of cellphones…but it never defines what a cellphone is. It just seems to assume we all know what we’re talking about. That may be a fair assumption given the current ubiquity of cellphones and state of technological development. However, as usual when it comes to technological definitions, this cellphone exceptionalism sets up a bunch of current and future border cases. Does the opinion apply with equal vigor to an iPod? (maybe it depends on how smart it is–Shuffle no, Touch yes?) iPad? Internet-enabled digital cameras? Wearables like smartwatches, Google Glasses, FitBit or GoPro cameras? This problem will be exacerbated by the rise of the Internet of Things (IoT), where many conventional devices that are currently “dumb” are becoming Internet-enabled. I expect that in a decade or two, we’ll look back on this opinion fondly for its quaintly archaic notions of what is a cellphone and, by implication, what isn’t. In the interim, I anticipate we’ll have some fun in the lower courts exploring the boundaries of what the court meant by “cellphone.”
2) The opinion engages in a classic Internet Law exercise of analogizing and distinguishing tangible vs. intangible items. The court says that digital data lacks some of the traditional indicia of physical items that could be searched incident to arrest. Digital data, unlike physical items, poses no risk of harm to officers, no risk of facilitating an escape from custody, and no risk of evidence destruction. The opinion then justifies cellphone exceptionalism compared to other physical items that an arrestee might have on grounds that include:
* “immense” storage capacity, which means the phone can store many different data types in one item, can contain more of one type of data than previously possible, and can include archival information back to the initial phone acquisition (and even before)
* cellphones are “pervasive,” in that they are always in the owner’s possession
* some data types are qualitatively different than it was historically possible for people to carry around
3) The opinion also acknowledges that we’ve swung back to storing data centrally rather than just locally:
officers searching a phone’s data would not typically know whether the information they are viewing was stored locally at the time of the arrest or has been pulled from the cloud.
It’s nice to see that acknowledgement, though it would have been even better if the opinion acknowledged that the phone owners often don’t know this distinction either. This is a primary reason why the Third Party Doctrine makes zero sense in an Internet-everywhere era.