Friday, February 21, 2014

Sam Sung Like a Canary: What Riley v. California and United States v. Wurie Mean For Digital Privacy Rights

“Three can keep a secret if two of them are dead.”  Benjamin Franklin’s famous idiom, in essence, alludes to the fact that our most intimate secrets may never be safe in the hands of another.   In the age of the “Digital Revolution,” however, is our intimate information really safe in our own hands?  91% of adult American’s own cell phones today, and as the technology becomes more sophisticated, so does our use of it.  Thumbing through our phones is no longer about a list of names and numbers, it has evolved into much more sensitive information.  Our phones have become an extension of ourselves and contain information including emails, photos, and GPS data. Consequently, modern technology has courts struggling to apply a search-incident-to-arrest jurisprudence that was developed before the dawn of the digital era to the question of whether the Fourth Amendment permits warrantless searches of data on a cell phone seized from an individual.[1]  Accordingly, the Supreme Court has granted certiorari in a set of pivotal constitutional privacy rights cases. 

To effectively understand the scope of this legal discourse, it is first necessary to briefly examine the jurisprudence from which it arises.  The modern framework for analyzing the search-incident-to-arrest exception to the warrant requirement derives from: (1) Chimel v. California; (2) United States v. Robinson; (3) United States v. Chadwick; and (4) Arizona v. Gant.  Collectively, the rationale in these cases is controlled by a need to preserve the officer’s safety and to prevent the destruction of evidence.  Accordingly, Chimel and Robinson stand for the proposition that an officer may conduct a search of the arrestee’s person as well as any area into which an arrestee might reasonably reach at the time of the arrest.  The lawful search of an arrestee, however, does not always permit the automatic search of the item seized.   Chadwick and Gant limit the authority of an officer to conduct a warrantless search.  That is, in Chadwick the Supreme Court reasoned that once the item seized was within the officer’s exclusive control, the justification for the search has diminished.  Furthermore, in Gant, the Supreme Court reasoned that the warrantless search of the interior compartment of a recently occupied vehicle is only justified if there is reason to believe that there is evidence of the charged offense and the arrestee is not secured.  There, again the controlling rationale is the protection of officers and to prevent the destruction of evidence.   It is difficult to say how the Court will navigate the current jurisprudence; however, these cases will be closely watched as they determine the privacy afforded to your cell phones.

On April 29, 2014, the Supreme Court will hear arguments in Riley v. California and United States v. Wurie.  Reasonableness is the standard by which society measures the constitutionality of a governmental search.  As such, these cases provide the Supreme Court a unique opportunity to consider variations on the propriety of cell phone searches and thus to establish comprehensive rules on how to analyze the reasonableness of these searches.  Riley and Wurie involve various types of digital data stored on cell phones, as well as considerations of time and place.  The Supreme Court will consider the following:

Riley v. California:

Issue:  Whether evidence admitted at petitioner’s trial which was obtained in a search of petitioner’s cell phone violated petitioner’s Fourth Amendment Rights.

Facts:  On August 22, 2009, after the defendant (Riley) was arrested for carrying concealed and loaded weapons, he was searched at the scene, and the phone in his possession was seized.   Subsequently, the officer accessed the contacts and messages and noticed all of the entries starting with a “k” were preceded by a “c.”  The officer believed this nomenclature signified “Crip Killer.”  At the police station, approximately two to three hours later, a detective specializing in gangs accessed Riley’s phone again, after he was unresponsive during interrogation.  The detective examined the phone’s stored data including, pictures and videos, looking for further evidence connecting Riley to gangs.  The evidence obtained, that is, a photo of Riley standing next to a vehicle believed to be involved in a gang shooting was used against him at trial.  Riley was convicted and sentenced pursuant to a gang enhancement.

United States v. Wurie:

Issue:  Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.

Facts:  On September 5, 2007, after the defendant (Wurie) was arrested for distributing crack cocaine, he was immediately taken to the police station where two cell phones in his possession were seized.  Officers noticed that one of the phones was repeatedly receiving calls from a number identified as “home.”  Subsequently, the officers accessed the phone’s call log and found the phone number associated with the “home” reference. 

Impact Analysis:

A search is defined as a government intrusion into a place where a person (1) has a reasonable expectation of privacy (subjective) and (2) that expectation is one that society is prepared to recognize as reasonable (objective).  A property is considered seized where there is meaningful interference with a person’s possessory interests in that property.  Is an individual’s privacy interest in the digital information stored in his/her phone an expectation that society is prepared to recognize as reasonable?  If so, to what information does that interest extend? In determining these questions, the Supreme Court must determine two core concepts. First, whether the digital data of cell phones is qualitatively similar to the simple, physical items considered automatically searchable.  That is, is the data stored in an individual’s cell phone similar to items contained in a bag?  Second, whether the current jurisprudence provides any legal basis for distinguishing between an item seized itself and its contents.  That is, can the phone that may be lawfully seized be separated from the digital data stored in it?

These questions are essential for a variety of reasons, a few of which will be discussed here. Under Gant, an officer may search any container within the interior compartment of the vehicle (e.g. a duffle bag).  If the officer has reason to believe the bag contains evidence of the charged offense, he is justified in opening it and examining the contents.  Is a cell phone something that can be “opened” and “examined” similar to a duffle bag?  If so, is all the stored digital data susceptible to inspection?  Hypothetically, assume an individual is placed under arrest for allegedly committing a robbery on the basis of eyewitness testimony identifying the make and model of the vehicle and providing a rough description of the culprit.  Furthermore, the eyewitness provides information that immediately after the culprit left the store, he made a phone call to an unknown recipient.  Under the current jurisprudence, GPS data stored in the phone may reasonably provide evidence corroborating the witness testimony and would justify searching the phone. 

This type of investigation is an essential tool for the government to effectively operate.  Consequently, the Fourth Amendment seeks to balance the rights of citizens to be free from undue government intrusion with the power of government to investigate criminal activity.  However, it is important to note the professional implications.  For example, if the Court determines that the search-incident-to-arrest jurisprudence extends to the digital contents of a phone then the government would be able to more easily obtain evidence against an arrestee under a lower standard of proof.   An officer would be permitted to conduct a search of the digital content stored in an individuals phone based on a “reasonable suspicion, whereas otherwise they would be required to have probable cause that justifies a warrant.  This would require defense attorney’s to develop new innovative approaches to representation.  While it might serve a public necessity, such broad authority would be against public interest.   The benefit of permitting such searches is outweighed by the undue burden it places on individual rights.

The Supreme Court should use Riley and Wurie to limit the scope of search-incident-to-arrest jurisprudence.  The government’s interest may be preserved by reasonable alternative, including allowing the government to seize the phone as evidence, but not search without a valid warrant.  The search-incident-to-arrest rationale emanates from a need to protect officer safety and preserve evidence.  If the phone is in the “exclusive control” of the officer, then neither justification is present.  While modern technology permits remote access that would threaten the preservation of evidence, there are preferable measures that balance the individuals rights with government interest, including (1) turning the phone off; (2) placing the phone on airplane mode or (3) copying the contents of the phone, without looking at them, to preserve the original contents/nature until a warrant may be obtained. 

The stage has been set and all of the pieces are in place.  On April 29, 2014, the Supreme Court will hear arguments for Riley and Wurie,.  Individuals and practitioners should closely watch as these cases will determine the extent of our privacy rights and thus impact the legal profession.

Saifuddin Kalolwala
Staffer, Criminal Law Practitioner 

[1] United States v. Wurie, 728 F.3d 1, 4 (1st Cir. 2013).


  1. Very interesting take on the issue. Also-- clever title!

  2. Hi, got an interest in this case, what is the outcome?