By Rich Holloway, J.D., Program Director of Criminal Justice
On June 25, 2014, in the case of Riley v. California, the US Supreme Court made a powerful statement supporting privacy in a time when concerns about terrorism have fueled the debate on privacy versus security. The Court addressed a question raised in two separate cases: “whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” The Court, in its ruling, acknowledged that the smart phone of today is not the cell phone of old, and accordingly, for police officers, the rules of old do not apply to the phones of today.
In Riley, the U.S. Supreme Court ruled that police may not search digital information on a cell phone during an arrest without first obtaining a warrant. Two cases were consolidated before the Supreme Court to address this issue. David Riley was stopped for driving with expired vehicle registration tags, and it was subsequently learned that his driver’s license had been suspended. Riley was arrested and the police conducted an inventory search of Riley’s car and found illegal firearms. As part of the search of Riley during his arrest, his cell phone was also searched without a warrant. In the second case, Brima Wurie was observed making an apparent drug sale from a car. Wurie was arrested and at the police station, officers seized two cell phones from his person. Information obtained from Wurie’s cell phone was used to locate his apartment, and the police subsequently did a warrant-based search of his apartment.
In deciding whether to exempt a particular type of search from the warrant requirement (a search incident to arrest is an exception to the warrant requirement), the Court balances the competing interests of the government and the individual: the level of intrusion on the individual’s privacy versus the need to promote a legitimate governmental interest. The Court determined that the traditional concerns of officer safety and prevention of the destruction of evidence did not apply to a search of cell phone. The Court also reasoned that the large storage capacity and the nature of information that can be stored on today’s smart phones make a search of a cell phone qualitatively different from the search of other physical items that may be in a person’s possession at the time of arrest. Additionally, smart phones today use “cloud” technology, so data is not always actually stored on the phone itself. This means that searching the phone actually extends the search to the “cloud” to which that phone is linked.
The Supreme Court’s decision in Riley does not state that digital information on a cell phone cannot be searched – it simply requires a warrant to do so. From the perspective of law enforcement, this represents an additional burden, though not an insurmountable one – additional time to secure information on a subject phone. Concerns about destruction of evidence can be mitigated. Law enforcement can take steps to prevent an individual from remotely erasing data from the phone before they are able to obtain a warrant.
Aside from the relatively minor challenges the Riley ruling presents to law enforcement, the Supreme Court’s decision demonstrates the flexibility of our Constitutional jurisprudence – a document written at a time by people who likely never contemplated technology like today’s smart phones. That document being interpreted by today’s Supreme Court Justices to address the same fundamental concerns of that time (limiting the government’s intrusion into our private lives), but through the lens of today’s technological and social issues. In a time of legitimate concern about the NSA and other alphabet agencies monitoring too closely the average American, the Riley ruling suggests that there is still hope for privacy.
Richard Holloway, J.D., practiced both criminal and civil law in the Chicago area for nearly a decade before he began teaching as an adjunct professor in Business Law and Criminal Justice.