Friday, December 12, 2014

Riley v. California: The Pandora’s Box in A Digital Age Restructuring of Fourth Amendment Law

This summer, the United States Supreme Court made a huge leap in upholding the people’s right to privacy under the Fourth Amendment in the unanimous decision, Riley v. California.  Riley created a bright-line rule, curbing police discretion, that cell phones (not only smart phones) are not reasonably subject to a search incident to arrest unless an extenuating circumstance is present. 

The underlying rationale in Riley is that modern cell phones not only contain a high quantity of data but also a high quality of data.  First, the Court articulated that cell phones contain vast amounts of information in many forms: a rolodex (or call log), a photo album, a GPS, and financial statements; which are just a glimpse of the expanse of information stored.  A search of such a small device may yield more information than even the most thorough search of the home. 

The Court also discussed the quality of information that a cell phone might yield.  Chief Justice Roberts discussed how the isolation of one of the above examples has so much more depth to it in the digital age than its physical predecessor.  Take a photo book for example.  The police can potentially use a photo album on someone’s phone to recreate how and when that person went about his or her day.  The picture data often contains location data and timestamps, which one could never obtain from looking at a physical picture.  Further, a person might have a wealth of information, financial data for example, on his or her phone that would not ever be present at the home.

Some have criticized the Riley opinion as a digital restructuring of the Fourth Amendment.  Viewed with a negative or positive lens, that is just what Riley is; it is an effort to bring the law up to date with current and emerging technology.  Riley starts the law on a path of playing catch up, but there is still a long road ahead.  Although Riley tackles a very specific matter, the implications that can be reached from the rationale behind the opinion are vast.  Courts are left to navigate a murky area of the law that just became a little darker with but one flashlight.  Courts are hesitant to extend the holding to other situations where the rationale based on new characteristics of digital data reverberates to other technologies.  Justly so, many courts do not want to make sweeping changes to existing law, and some courts are pushing back against the Riley holding itself by finding any way to distinguish their cases.

Some courts hold compliance with Riley, while others oppose it.  The United States District Court for the District of Nevada upheld the new Riley Precedent and suppressed the now illegal search of a cell phone incident to arrest in United States v. Eisenhower.[1]  However, the District Court for the District of Maine found a workaround to the Riley holding in United States v. Stile.[2]  The police searched the defendant’s phone incident to arrest.  Factually, the police did have a warrant, but the search occurred before the warrant was procured.  The court stated that, “the officers inevitably would have searched the cellphone . . . and would have discovered the text messages.”  This seems to be in direct conflict with the holding in Riley. 

The implications that Riley extends to other technology, just as rich in quality and quantity of information, has had a large push back from the lower courts.  The District Court for the Southern District of New York declined to extend protections of digital data to a computer in United States v. Yudong Zhu.[3]  The court conceded that “Zhu is correct that a defendant's privacy interests in the information on a laptop implicate the same interests as that stored on a cell phone.”  However, the court determined that they would not extend the protections Riley affords digital data.  The trick: the third party rule; the court claimed that because the computer was owned by the university that Zhu worked for, he had no privacy interest in its contents.
The District Court for the District of Nebraska also declined to extend Riley’s protections in United States v. Benjamin.[4]  The court reasoned that taking data from credit cards via the magnetic strip was not protected “because it involved neither a physical intrusion nor any violation of a reasonable expectation of privacy.”  This is an argument stretched thin.  How does one physically intrude a cell phone without taking it apart, at which point the contents become useless?  A search of a cell phone is not a “physical intrusion;” indeed it is a digital intrusion.  Searching the magnetic strip of a credit card is much the same.  Further, the court stated that “[t]o find a subjective expectation of privacy, the Court would need to believe that the defendant never intended to reveal the information encoded on the magnetic strip—that is, that he never intended to use the cards, despite his name being on them.”  The court in Riley held, in dicta, that digital data can hold a reasonable expectation of privacy.  People intend to reveal the contents of their cell phones regularly.  This can be shown from the simple example of physically showing a picture to a friend or uploading that same picture to an app such as Instagram, and Riley upheld privacy interest in cell phones.

A credit card’s magnetic strip may have less privacy concerns than does a cell phone, but both mediums have one thing in common: digital data.  Riley has unearthed a Pandora’s box of legal questions that must eventually be answered to fall in line with the digital reconstruction of the Fourth Amendment that is now underway.
Michael Bayern
Senior Editor, Criminal Law Practitioner

Photo by Victorgrigas via  Wikimedia Commons              

[1] United States v. Eisenhour, No. 3:14-CR-00027-RCJ, 2014 WL 4206884 (D. Nev. Aug. 25, 2014).
[2] United States v. Stile, No. 1:11-CR-00185-JAW, 2014 WL 5106986 (D. Me. Oct. 10, 2014).
[3] United States v. Yudong Zhu, No. 13 CR. 761, 2014 WL 4229948 (S.D.N.Y. Aug. 18, 2014).
[4] United States v. Benjamin, No. 4:14-CR-3089, 2014 WL 5431349 (D. Neb. Oct. 24, 2014).

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