Warrantless Search of the Digital Data on Cell Phones
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Warrantless Search of th
Digital Data on Cell Pho
BY CALLIE PIPPIN RAITINGER1 The Fourth Amendment to the Recently, in Riley, the U.S. Supreme
U.S. Constitution guarantees people Court visited that issue and ruled that
the right to be free from unreasonable the search incident to lawful arrest
searches and seizures.2 Application exception can not be applied to permit
of the Fourth Amendment requires police officers to search the digital
police officers to obtain a search contents of a cell phone without first
warrant prior to conducting any obtaining a warrant.11
search, unless one of several specific
exceptions applies.3 One such Riley v. California
exception is the “search incident On August 22, 2009, David Riley
to a lawful arrest … exception.”4 was lawfully stopped by California
That exception has permitted police police officers for driving a Lexus with
officers, upon lawfully arresting expired tags.12 A resulting inventory
a person, to search the person of search of the Lexus revealed two
Callie Pippin Raitinger
the arrestee and the area within his concealed firearms.13 Riley was placed
or her immediate control without under arrest and a cell phone was
first obtaining a warrant.5 The U.S. removed from Riley’s person during a
Supreme Court, however, has recently subsequent search.14
limited the application of the search
incident to lawful arrest exception in A police officer at the scene of the
its rulings in Riley v. California 6 and arrest looked briefly through Riley’s
United States v. Wurie.7 cell phone.15 Some of the entries in
the cell phone address book, along
Historically, pursuant to the search with the loaded and concealed
incident to lawful arrest exception weapons and other items found
to the general warrant requirement, during the inventory search of Riley’s
police officers were permitted to Lexus, led the officers to believe that
search the contents of any container Riley was involved in gang activity.16
found on an arrestee’s person without As a result, the officers called in a
obtaining a warrant, regardless detective who specialized in gang
of the nature of that container.8 activity.17 That detective searched
Technological advances, however, the cell phone and found videos and
have raised questions regarding the photographs that he believed to be
constitutionality of police officers incriminating.18
having such broad authority.9
Specifically, the constitutionality − or The police determined that the
unconstitutionality − of warrantless firearms concealed in the Lexus that
searches of the data contained within Riley had been driving were used
a cellular telephone (hereinafter “cell in a prior shooting and that the
phone”) found on the person of an cell phone seized from Riley was
arrestee pursuant to a search incident used near the time and place of that
to a lawful arrest has been raised.10 shooting and also shortly after the
34 / Journal of the MISSOURI BAR
At the police station, Wurie’s and cash were seized from the home
he personal property, including two
cell phones, were collected.27 After
noticing that one of the cell phones
seized from Wurie was receiving
in a search pursuant to execution of
that warrant.35
“Wurie was charged with possessing
ones
repeated phone calls from “my house,” with intent to distribute and
the police officers opened Wurie’s distributing cocaine base and with
cell phone to view his call log.28 The being a felon in possession of a firearm
officers pushed one button to reach and ammunition.”36 The trial court
Wurie’s call log and then another to denied Wurie’s motion to suppress
view the telephone number associated evidence found as a result of the
shooting at a location where a vehicle with “my house.”29 Using an online warrantless search of his cell phone.37
connected to the shooting was later search directory, the police officers Wurie was convicted by a jury on all
discovered.19 “Riley was charged with learned that the address associated three counts.38
… shooting at an occupied vehicle, with that number was near where
attempted murder, and assault with Wurie had parked his car immediately Split in Authority
a semi-automatic firearm.”20 At trial, before being arrested.30 Wurie had told The California Court of Appeals
the jury was shown photographs and police officers that he did not live near affirmed Riley’s convictions.39 After
videos that were recovered from the where he had parked his car.31 the California Supreme Court denied
cell phone.21 The review, Riley filed a petition for writ
jury convicted The police officers went of certiorari with the U.S. Supreme
Riley on all three to the address that was Court, which was granted.40
counts.22
The 1st U.S. Circuit Court of
United States v. Appeals held that the trial court
Wurie erred in denying Wurie’s motion to
On September suppress and vacated his conviction.41
5, 2007, a Boston The United States of America filed
Police Department a petition for writ of certiorari with
sergeant detective the U.S. Supreme Court, which was
observed what he granted.42
believed to be a
drug deal occurring The History of the Warrantless
in a parked vehicle.23 Search Incident to Lawful Arrest
After the suspected Exception
transaction was associated with the The concept of foregoing the
completed, two police phone number general warrant requirement and
officers stopped the identified as “my allowing a warrantless search of a
suspected buyer and house” in Wurie’s person incident to a lawful arrest
found crack cocaine in cell phone.32 first arose in the 1914 case of Weeks
his pocket.24 The buyer The name v. United States43 as dicta.44 That idea
admitted to buying drugs “Wurie” was on continued to be raised, although
from the other person in the the mailbox and, as dicta, in subsequent cases until
car, later determined to be through a window 1969, when the U.S. Supreme Court
Brima Wurie.25 Another officer into the home, police established the exception in the
who had been following the officers could see a woman who case of Chimel v. California.45 The
vehicle in which the suspected drug closely resembled the picture of a U.S. Supreme Court reaffirmed that
deal occurred observed the driver of woman that served as the wallpaper exception four years later in United
the vehicle, Wurie, park the vehicle. on Wurie’s cell phone.33 Police States v. Robinson.
The officer arrested Wurie upon his officers entered and secured the home
exit from the vehicle.26 while obtaining a search warrant.34 Chimel v. California
Crack cocaine, marijuana, drug In Chimel, police officers arrived
paraphernalia, a firearm, ammunition at Chimel’s home with an arrest
January-February 2015 / 35
warrant.46 No search warrant had been the general warrant requirement, the In subsequent cases, the Court
issued.47 Police officers presented “the U.S. Supreme Court held in Robinson went further than merely warning
arrest warrant [to Chimel] and asked that where one is lawfully arrested of the limitations of the exception
for permission to ‘look around.’”48 based on probable cause, no further to the general warrant requirement,
When Chimel refused permission, justification is necessary for a search of and actually imposed limitations.
the officers told him that pursuant to that person.60 The Court wrote, In the 1977 case of United States v.
his lawful arrest, they were going to Chadwick, the Court held invalid
search his home despite his refusal.49 [i]t is the fact of the lawful the warrantless search of a footlocker
The officers searched Chimel’s entire arrest which establishes the that had been double locked and
home, “including the attic, the garage, authority to search, and we placed in the trunk of a car.66 The
and a small workshop.”50 Several hold that in the case of a Court emphasized its preference for
items seized during that search were lawful custodial arrest a full searches pursuant to a search warrant,
presented as evidence against Chimel search of the person is not explaining that when a search warrant
at trial, over Chimel’s objections.51 only an exception to the is obtained, a neutral third party is
warrant requirement of the thrust into the equation who is not
In Chimel, the U.S. Supreme Fourth Amendment, but is “engaged in the often competitive
Court established an exception to also a “reasonable” search enterprise of ferreting out crime.”67
the general warrant requirement for under that Amendment.61 The Court held that where personal
searches incident to lawful arrest property not immediately associated
and announced two justifications for The Court also held that there is with the person of an arrestee is
establishing such an exception: (1) no subjective component of the removed from the arrestee’s exclusive
officer safety and (2) preservation warrantless search incident to lawful control, the Chimel justifications
of evidence.52 The Chimel Court arrest exception − the exception are no longer valid and “a search
ultimately ruled that to extend a applies regardless of whether the of that property is no longer an
search beyond the person of an arresting officer actually fears for his incident of the arrest.”68 Under those
arrestee to the arrestee’s entire home safety or believes that there is a threat circumstances, a warrant must be
and outbuildings was not reasonable of destruction of evidence.62 obtained prior to the property being
and violated Chimel’s constitutional searched.69 In 2009, in Arizona v.
rights under the Fourth and 14th Subsequent Supreme Court Cases Gant, the U.S. Supreme Court limited
Amendments.53 Between Robinson and Riley, the warrantless searches incident to arrest
U.S. Supreme Court consistently of the passenger compartment of
United States v. Robinson revisited and upheld the warrantless vehicles to situations in which there
In Robinson, a police officer search incident to lawful arrest is a genuine threat to officer safety or
arrested Robinson for operating a exception, although its application preservation of evidence.70
vehicle on a revoked license.54 While was progressively limited.
patting Robinson down subsequent United States v. Riley and United
to his arrest, the arresting officer In 1974, the U.S. Supreme Court States v. Wurie
felt something in Robinson’s coat upheld the seizure of an arrestee’s After discussing the facts of the
pocket.55 The officer later testified clothing hours after his arrest in individual cases and providing a
that at the time of the pat down, he United States v. Edwards.63 In its brief history of Fourth Amendment
was unable to identify the object by opinion, the Court warned that it did analysis, the U.S. Supreme Court
touch.56 The police officer removed not intend to imply “that the Warrant emphasized the importance of
from Robinson’s coat pocket “a Clause of the Fourth Amendment is balancing individual privacy interests
‘crumpled up cigarette package.’”57 never applicable to postarrest seizures against legitimate government
Although he could not identify what of the effects of an arrestee.”64 The interests in determining if application
the cigarette package contained, he Court wrote: ‘“While the legal arrest of an exception to the general
was able to determine that it did not of a person should not destroy the warrant requirement of the Fourth
contain cigarettes.58 The officer then privacy of his premises, it does – for Amendment is appropriate.71
removed 14 capsules of heroin from at least a reasonable time and to a
the cigarette package.59 reasonable extent – take his own Those in favor of applying the
privacy out of the realm of protection search incident to lawful arrest
In reaffirming the warrantless search from police interest in weapons, exception to the search of the digital
incident to lawful arrest exception to means of escape, and evidence.’”65 contents of cell phones (hereinafter
36 / Journal of the MISSOURI BAR“proponents”) had argued that search is of digital data rather than “opponents”) argued that the only real
Robinson’s clear, binding precedent a physical object.75 Furthermore, threat cell phones pose to officer safety
should apply and that any item the Court distinguished what was a arises where the cell phone has been
found on the person of an arrestee, relatively minor and brief intrusion fashioned into a weapon or a weapon
including the digital contents of a upon the privacy interests of the has been fashioned to look like a cell
cell phone, should be subject to a individual in Robinson from the much phone.78 Opponents argued that a
warrantless search incident to a lawful greater intrusion that results from a cursory search of the tangible cell
arrest.72 The Court acknowledged search of cell phone data, which is phone would determine if it presents
that a “mechanical application” of a greater quantity and completely a real safety threat and that a search of
the Robinson rule would support different quality of information than the digital contents of the cell phone is
warrantless searches of the content of a physical object carried on one’s not justified.79
cell phones during a search incident person.76
to a lawful arrest.73 The Court went The Court found proponents’
on to distinguish Robinson, however, Proponents made limited officer safety arguments not to
by finding that although Robinson arguments that cell phones present be compelling because they were
“strikes [an] appropriate balance” a threat to officer safety, with their not based on actual experiences.80
when considering a warrantless search most consistent argument being that Furthermore, the Court distinguished
incident to lawful arrest of a physical cell phones pose a threat because they those arguments from the core
object, when considering digital can be tracked by Global Positioning consideration in Chimel; in Chimel,
data on a cell phone, the balance is System satellites, resulting in officers the Court was concerned with the risk
just not the same.74 The Court held becoming the target of an ambush that the arrestee posed to officer safety,
that the two compelling Chimel by an arrestee’s accomplices who are not with the risk that the arrestee’s
justifications weighing greatly in favor monitoring the cell phone’s position.77 associates posed.81 The Court noted
of the government interest side of the Those opposed to applying the search that ruling based on the risk that an
balance in Robinson – officer safety incident to lawful arrest exception to arrestee’s associates may pose to officer
and preservation of evidence – are the search of the digital contents of safety would require an expansion of
not comparably significant when the an arrestee’s cell phone (hereinafter the Chimel justifications for imposing
January-February 2015 / 37on the arrestee’s individual rights - an Furthermore, proponents’ data In considering individual privacy
expansion the Court was not willing encryption argument, the Court interests, the Court found quite
to make.82 reasoned, would require an even compelling the “immense storage
greater expansion of the Chimel capacity” of today’s cell phones,
The Court agreed with the justifications than proponents’ officer the variety of information that can
opponents, summarily holding that safety arguments, because data be stored on a cell phone, and the
data found on a cell phone does encryption results automatically from intangibility of the information
not pose a threat to officer safety or computer programming and is not contained within the devices.95 The
present any real danger that would the result of any person’s action.90 The Court went into a detailed discussion
allow an arrestee to escape.83 The Court declined such an expansion. of the importance of these factors.
Court explained that in Robinson For example, the Court discussed the
the police officer was justified in The Court agreed with opponents fact that cell phones contain pieces of
continuing his search of the cigarette that remote wiping issues can be information that can be put together,
package after he was able to identify avoided by preventing the cell like a puzzle, to reconstruct one’s
that it did not contain cigarettes phone from connecting to the actions.96 This makes cell phones
because he did not know what it phone’s network, which could be unique in that while a person might
contained and he needed to determine achieved by either: (1) turning off ordinarily carry one or two of these
if the contents of the cigarette a cell phone and/or removing the pieces of information on his person,
package posed any threat.84 The Court phone’s battery; or (2) placing the cell prior to the advent of the modern
distinguished the search of the digital phone in a “Faraday bag.”91 Despite cell phone, one would not ordinarily
data found on cell phones by finding acknowledging that Faraday bags carry all of these pieces on their
that all police officers know that cell “may not be a complete answer to the person.97 Furthermore, the Court
phones contain data and that data problem,” the Court reasoned that found important the fact that the vast
does not present a risk of harm to the Faraday bags “provide a reasonable storage capacity of cell phones allow
officer.85 response” to the threat of remote a person to be carrying such puzzle
wiping, “at least for now”92 As with pieces dating back for a significant
Proponents argued that even after its response to other arguments, the period of time – even before the
a cell phone has been seized, there Court pointed out that a third party person owned the cell phone he is
exists the potential that evidence on – not the arrestee himself – would carrying.98 Additionally, the Court
the phone could be destroyed through likely be the person remotely wiping noted that a cell phone contains
data overwrite, data encryption, the cell phone, which, as discussed Internet search history – a type of
or remote wiping.86 Opponents above, would require an expansion of data one does not otherwise regularly
argued that there is no legitimate Chimel that the Court was unwilling carry on their person and would
concern regarding destruction of to make.93 not otherwise be accessible to police
evidence because police officers have during a search incident to a lawful
several options available to prevent In language that appears to arrest.99 The Court made the same
destruction of evidence found on a continue the trend of limiting observation regarding location data
cell phone.87 Opponents suggested warrantless searches, the Court held: that can be found on a cell phone,
that police officers could remove but which is not otherwise ordinarily
the cell phone battery, power off the The fact that an arrestee has carried on one’s person.100
cell phone, or place the cell phone diminished privacy interests
in a Faraday Bag - “a relatively does not mean that the Also persuasive to the Court was
inexpensive" technology that can Fourth Amendment falls out the fact that much of the data viewed
prevent cell phones from transmitting of the picture entirely. Not on a cell phone may not be stored on
data and, therefore, prevent remote every search “is acceptable the cell phone, and it is often not clear
destruction of evidence on the cell solely because a person is in to the person viewing the data where
phone.88 custody.” . . . To the contrary, the data being viewed is stored.101
when “privacy-related Because proponents conceded that
In addressing destruction of concerns are weighty enough” data accessible through a cell phone
evidence arguments, the Court a “search may require a but stored elsewhere would not be
pointed out that nothing suggests that warrant, notwithstanding the subject to a search under the search
remote wiping or data encryption diminished expectations of incident to lawful arrest exception,
actually present a prevalent problem.89 privacy of the arrestee.”94 the Court pointed out that allowing
38 / Journal of the MISSOURI BARcell phone data to be searched under on the ability of law enforcement 3 See, e.g., California v. Acevedo, 500 U.S.
that exception would only further to combat crime.”109 The Court 565 (1991).
4 United States v. Robinson, 414 U.S. 218
complicate matters.102 warned, however, that obtaining a (1973).
warrant should not be viewed as an 5 Id. at 224.
In weighing the competing inconvenience to the government; 6 No. 13-132, slip op. at 1 (June 25, 2014).
interests, the Court reasoned that instead, we should remember that 7 No. 13-212, slip op. at 1 (June 25, 2014).
8 Robinson, 414 U.S. at 236. See also
today’s cell phones contain the the Fourth Amendment warrant
United States v. Chadwick, 433 U.S. 1 (1977);
amount and type of information akin requirement “is ‘an important Wyoming v. Houghton, 526 U.S. 295 (1999);
to the information that a police officer working part of our machinery of Preston v. United States, 376 U.S. 364, 367
would have found in searching the government.’”110 The Court further (1964); Florida v. Wells, 495 U.S. 1 (1990);
home of an arrestee pursuant to his pointed out that just as technology and Wayne A. Logan, An Exception Swallows
a Rule: Policy Authority to Search Incident to
arrest, as in Chimel, rather than the has raised issues such as those in Riley, Arrest, 19 Yale L. & Pol’y Rev. 396 (2001);
limited amount of information that it has “made the process of obtaining available at http://ssrn.com/abstract=1186526.
would have been found on the person a warrant … more efficient.”111 9 See, e.g., People v. Riley, D059840, slip op.
of the arrestee in Robinson.103 As such, Therefore, police officers can use (Cal. Ct. App. Feb. 8, 2013); People v. Diaz,
244 P.3d 501 (Cal. 2011); United States v.
the Court found that searching the the technology available to them to
Wurie, 728 F.3d 1 (1st Cir. 2013).
digital data found on a cell phone more efficiently obtain a valid search 10 See, e.g., People v. Riley; United States v.
without obtaining a warrant would warrant, which would allow them Wurie, 728 F. 3d 1 (1st Cir. 2013).
be akin to searching Chimel’s home to quickly and effectively search the 11 Riley v. California, No. 13-132, slip op.
without a warrant.104 digital data on a cell phone.112 at 28 (June 25, 2014).
12 People v. Riley, D059840, slip op. at 3, 5
(Cal. Ct. App. Feb. 8, 2013).
The Court ultimately wrote that Conclusion 13 Id. at 3. Upon learning that Riley was
“[o]ur answer to the question of In Riley, the U.S. Supreme Court driving on a suspended license, the police
what police must do before searching appears to have set forth a very officer who had stopped Riley ordered him out
of the vehicle with the intent of impounding
a cell phone seized incident to an clear rule: the search of the digital
the vehicle. Id. at 5. The resulting search was
arrest is [ ] simple – get a warrant.”105 contents of a cell phone of an arrestee a standard inventory search required by policy
The Court further wrote, however, requires a valid search warrant to be upon impounding a car. Id. at 6.
that its holding “is not that the constitutional. However, the Court 14 Id. at 3.
information on a cell phone is reiterated that its ruling was not 15 Id. at 7.
16 Id.
immune from search; it is instead meant to limit the application of other 17 Id.
that a warrant is generally required valid exceptions to the general search 18 Id.
before such a search, even when a cell warrant requirement in searching the 19 Id. at 2-4. It is unclear from the record
phone is seized incident to arrest.”106 digital contents of a cell phone found whether police officers determined that the
cell phone found on Riley was used at these
Additionally, the Court reiterated on an arrestee’s person.113 Thus, the
times and places by searching the contents of
throughout its opinion that although Court attempted to preempt any the cell phone itself or if that information was
the search incident to lawful arrest misconception that its ruling applied obtained from an independent source.
exception does not apply to the search to any exception to the general 20 People v. Riley, D059840, slip op. at 16
of the digital contents of a cell phone, warrant requirement other than (Cal. Ct. App. Feb. 8, 2013). Petition for a
Writ of Certiorari, Riley v. California at 4, No.
other exceptions to the general search the search incident to lawful arrest 13-132 (July 30, 2013). Riley was charged
warrant requirement, under proper exception. separately with carrying concealed firearms in a
circumstances, could apply and allow vehicle and carrying loaded firearms in a public
for the search of a cell phone without Endnotes place related to his initial arrest on August 29,
1 Callie Pippin Raitinger is a law clerk to 2012; available at http://sblog.s3.amazonaws.
a warrant.107
the Honorable David M. Byrn at the Circuit com/wp-content/uploads/2013/09/Riley-cert-
Court of Jackson County, Missouri. She is a petition-final1.pdf.
The Court acknowledged that member of The Missouri Bar Young Lawyers’ 21 Petition for a Writ of Certiorari at 5,
cell phones are often instrumental Section Council. Riley v. California, No. 13-132 (July 30, 2013).
in the commission of crime, but 2 “The right of the people to be secure in 22 People v. Riley, D059840, slip op. at 1-2
their persons, houses, papers and effects against (Cal. Ct. App. Feb. 8, 2013). The state charged
held that individual “[p]rivacy the crimes as being committed in furtherance
unreasonable searches and seizures shall not
comes at a cost” and that cost under be violated, and no warrants shall issue but of street gang activity. Petition for a Writ of
these circumstances is the potential upon probable cause, supported by oath or Certiorari at 4, Riley v. California, No. 13-132
hindrance of law enforcement affirmation, and particularly describing the (July 30, 2103). As a result, the Court was
place to be searched, and the persons or things required to sentence Riley to 15 years to life in
activity.108 The Court acknowledged
to be seized.” U.S. Const. amend. IV. prison, whereas had the crimes not be charged
that its ruling “will have an impact as being committed in furtherance of street
January-February 2015 / 39gang activity, the maximum sentence Riley 67 Id. at 9. available at http://www.americanbar.org/ could have received was seven years. Id. at 4-5. 68 Id. at 15. content/dam/aba/publications/supreme_ 23 United States v. Wurie, 728 F.3d at 1 (1st 69 Id. court_preview/briefs-v3/13-132_resp_amcu. Cir. 2013). 70 556 U.S. 332, 351 (2009). “Police may authcheckdam.pdf.; Brief of Amici Curiae 24 Id. search a vehicle incident to a recent occupant’s Association of State Criminal Investigative 25 Id. at 1-2. arrest only if the arrestee is within reaching Agencies et al. in Support of Respondent at 26 Id. at 2. distance of the passenger compartment at the 8-10, Riley v. California, No. 13-132 (April 27 Id. time of the search or it is reasonable to believe 9, 2014). Data overwrite occurs when a 28 Id. Because the cell phone in question the vehicle contains evidence of the offense of phone’s storage capacity is exhausted and was a flip phone with a screen on the outside the arrest.” Id. new information systematically replaces old of the phone, “[t]he police officers were able to 71 Riley v. California, No. 13-132, slip op. information; it occurs automatically on some see …‘my house’ … in plain view” when the at 9 (June 25, 2014). cell phones. Eric Katz, A Field Test of Mobile cell phone received calls. Id. 72 See Brief in Opposition at 6-10, Riley Phone Shielding Devices, Perdue e-Pubs, 18 29 Id. v. California, No. 13-132 (Sept. 26, 2013); (2010) at http://docs.lib.purdue.edu/cgi/ 30 Id. available at http://sblog.s3.amazonaws.com/ viewcontent.cgi?article=1033&context=tech 31 Id. Wurie was Mirandized twice before wp-content/uploads/2013/10/RileyBrief- masters. There are also programs designed to making this statement. Id. in-Opposition.pdf ); Petition for a Writ of inundate a cell phone with text messages for 32 Id. Certiorari, Riley v. California, No. 13-132 the express purpose of overwriting previous 33 Id. at 4 (July 30, 2013); Brief of Amici Curiae text messages. Id. A remote wipe occurs when 34 Id. Association of State Criminal Investigative the data on a cell phone is erased by someone 35 Id. Agencies et al. in Support of Respondent at other than the person who has possession of 36 Id. 7, Riley v. California, No. 13-132 (April 9, the phone. 37 Id. 2014); available at http://www.americanbar. 87 United States v. Wurie, 728 F.3d at11; 38 Id. org/content/dam/aba/publications/supreme_ Brief of the National Association of Criminal 39 People v. Riley, D059840, slip op. at 22 court_preview/briefs-v3/13-132_resp_amcu_ Defense Lawyers et al. as Amici Curiae (Cal. Ct. App. Feb. 8, 2013). ascia-etal.authcheckdam.pdf. in Support of Petition at 15-17, Riley v. 40 Petition for Writ of Certiorari at 1, Riley 73 Riley v. California, No. 13-132, slip op. California, No. 13-132 (March 10, 2014); v. California, No. 13-132 (July 30, 2013); at 9 (June 25, 2014). available at http://www.brennancenter.org/ available at http://sblog.s3.amazonaws.com/ 74 Id. Riley, therefore, appears to limit the sites/default/files/analysis/Riley%20Brief%20 wp-content/uploads/2013/09/Riley-cert- application of Robinson to the warrantless NACDL%20%26%20Brennan.pdf. petition-final1.pdf. search incident to lawful arrest of physical 88 See Brief for the Cato Institute as Amicus 41 Wurie, 728 F.3d. at 13-14. objects. Curiae in Support of the Petitioner at 22, 42 Petition for Writ of Certiorari at 1, 75 Id. Riley v. California, No. 13-132 (March 10, United States v. Wurie, No. 13-212 (Aug. 15, 76 Id. at 9-10. See also id. at 16, 17. 2014); available at http://www.americanbar. 2013); available at http://federalevidence.com/ 77 See e.g. Brief of Amici Curiae Association org/content/dam/aba/publications/supreme_ pdf/4thAmCell/Wurie.SG.Pet.pdf. of State Criminal Investigative Agencies et court_preview/briefs-v3/13-132_pet_amcu_ 43 232 U.S. 383 (1914). al. in Support of Respondent at 11, Riley cato.authcheckdam.pdf ; MacLean, n. 78 at 44 Chimel v. California, 395 U.S. 752, 755 v. California, No. 13-132 (April 9, 2014). 49-51. (1969). Proponents also argued that cell phones pose a Simply powering off the cell phone or 45 See id. 752-62. For a thorough discussion threat to officer safety because they can be used removing the battery may be ineffective of the line of cases between Weeks v. United to detonate explosive devices, but the Court because, if data has been transmitted to the cell States and those discussed herein referencing a did not address this argument. phone instructing it to wipe the contents of the search incident to a lawful arrest, see Chimel v. 78 See Charles E. MacLean, But, Your cell phone or overwrite previous text messages California, 395 U.S. at 753-62. Honor, a Cell Phone is not a Cigarette Pack: while it is without power, the instruction to 46 Id. at 753. An Immodest Call for a Return to the Chimel wipe the phone or overwrite the messages will 47 Id. at 754. Justifications for Cell Phone Memory Searches simply be queued and, upon the cell phone 48 Id. at 753. Incident to Lawful Arrest, 6 Fed. Cts. L. being powered on again and communicating 49 Id. at 753-54. Rev. 37, 48-49 (2012); available at http:// with its network, the phone will immediately 50 Id. at 754. papers.ssrn.com/sol3/papers.cfm?abstract_ be wiped. See Andrew Martonik, How to: Set 51 Id. id=2353071. Up Android Device Manager to Lock and Wipe 52 Id. at 762-63. 79 See id. Your Phone, Androidcentral (Sept. 23, 53 Id. at 768. 80 Riley v. California, No. 13-132, slip op. 2013, 9:47 PM), http://www.androidcentral. 54 414 U.S. at 220-21. at 11. com/how-set-android-device-manager-lock- 55 Id. at 222-23. 81 Id. and-wipe-your-phone. See also iCloud: Erase 56 Id. at 223. 82 Id. Your Device, Apple, http://support.apple. 57 Id. 83 Riley v. California, No. 13-132, slip op. com/kb/PH2701. A cell phone merely needs 58 Id. at 10. The Court did note that its decision to have access to a network for a few seconds 59 Id. does not inhibit the ability of an officer to for a remote wipe command to be successfully 60 Id. at 235. search the tangible body of a cell phone to executed. See Katz, note 86 at 61. 61 Id. ensure that it does not pose a threat. Id. at Field tests have proven that Faraday bag 62 Id. at 236. 10-11. technology is often not effective and, therefore, 63 415 U.S. 800, 801-03, 808 (1974). 84 Id. at 11. is unreliable. See Brief for Respondent at 64 Id. at 808. 85 Id. 39, Riley v. California, No. 13-132 (April 2, 65 Id. 86 See Brief for Respondent at 33, 25, Riley 2014); Katz, note 86. Many reputable law 66 433 U.S. at 15-16. v. California, No. 13-132 (April 2, 2014); enforcement organizations have determined 40 / Journal of the MISSOURI BAR
that the only way to prevent destruction of 98 Id. must determine what qualifies as a cell phone.
data is to completely remove the cell phone 99 Id. at 20. Applications can be downloaded on certain
from any contact with its network provider. Id. 100 Id. i-Pods that allow the user to utilize the i-Pod
at 18-19. In field tests, the majority of “phones 101 Id. at 21. The Court pointed out that to make phone calls and send text messages,
were not isolated from their networks despite further complicating this matter is the fact that similar to using a cell phone. See, e.g., Google
being enclosed in a shielding device” and none different phones store data differently so that Hangouts for iOS Dials Up Free Voice Calls for
of the Faraday bags tested were 100 percent data stored on one cell phone may be stored US, Canada, CNet (Oct. 19, 2013) at http://
effective. Id. at x. In some cases, call log history remotely when searching a different cell phone. news.cnet.com/8301-1035_3-57608313-94/
could still be modified while a cell phone Id. google-hangouts-for-ios-dials-up-free-voice-
was in a Faraday bag. Id. at 59. In others, a 102 Id. calls-for-us-canada/. Does an i-Pod fall under
complete remote wipe of the cell phone was 103 Id. at 17-18. the Robinson rule or the Riley rule? With ever
possible. Id. 104 Id. at 20-21. The Court quoted changing technology, the distinction between
89 Riley v. California, No. 13-132, slip op. the Honorable Learned Hand, who wrote cell phones and other electronic devices is
at 11 (June 25, 2014). In one amicus brief, two “that it is ‘a totally different thing to search likely to become more blurry. It seems obvious
actual cases of remote wiping were presented, a man’s pockets and use against him what that a prudent officer would obtain a search
including one in which a criminal organization they contain, from ransacking his house for warrant before searching any electronic device,
“had a security procedure, complete with an everything which may incriminate him.’” Id. unless another exception to the general search
IT department, to immediately and remotely at 20. The Court reasoned that with the advent warrant requirement applies. However, Riley
wipe all digital information from their cell of modern day cell phones, the distinction does not stand for that proposition and it is
phones.” Brief of Amici Curiae Association observed by Judge Hand barely exists. Id. The unclear if the Court actually intended that
of State Criminal Investigative Agencies et Court stated that a search of one’s cell phone result.
al. in Support of Respondent at 9-10, Riley “would typically expose to the government 106 Riley v. California, No. 13-132, slip op.
v. California, No. 13-132 (April 9, 2014). far more than the most exhaustive search of a at 25 (June 25, 2014).
The Court also pointed out that encryption house.” Id. 107 Id. at 11-12, 15, 26. Popular media
arguments were not raised until the merits 105 Id. at 28. The U.S. Supreme Court has reported the Court’s decision as holding
stage of the appeal to the U.S. Supreme Court has articulated, and consistently reiterated, that a warrant must always be obtained
and had not been presented to lower courts. its preference for bright-line rules that can be before the digital contents of a cell phone
Riley v. California, No. 13-132, slip op. at 11 easily applied by police officers making split may be searched. Those reports are an
(June 25, 2014). second decisions in dangerous situations. See oversimplification of the Riley decision and are
90 Id. e.g., Robinson, 414 U.S. at 235. At first blush, inaccurate.
91 Riley v. California, No. 13-132, slip op. it may appear that the rule set forth in Riley is 108 Id. at 25.
at 14 (June 25, 2014). consistent with this long-held preference. That, 109 Id.
92 Id. however, may not be the case. Police officers 110 Id. at 25-26.
93 See id. now potentially face a litany of issues that they 111 Id. at 26.
94 Id. at 16 (citation omitted). must resolve before determining what legal 112 See id.
95 Id. at 17-18. standard would apply to a search, all while 113 Id. at 11-12, 15, 26.
96 See id. at 18. working in potentially dangerous and time
97 Id. sensitive situations. For example, police officers
Judge Michael P. David, J.D.
Williams Venker & Sanders is proud to announce that the Honorable
Michael P. David has joined the firm following his retirement from
Missouri’s 22nd Circuit after twenty-five years of distinguished service.
We are honored that such a respected jurist would choose this firm to
begin the next chapter of his career.
Judge David adds a new dimension to our litigation practice, offering his
unique perspective into our clients’ legal needs. Besides adding
immeasurable value to our service offerings, he is developing a
mediation/arbitration practice bringing his vast experience in dispute
resolution to the entire legal community.
mdavid@wvslaw.com www.wvslaw.com • (314) 345-5000 • 100 N Broadway • St. Louis, MO 63102
(314) 345-5075
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