“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
Very interesting take on the issue. Also-- clever title!
ReplyDeleteHi, got an interest in this case, what is the outcome?
ReplyDelete