The Fourth Amendment for the 21st Century

By Daniel Bogdan

Part 1 in a 2-part series

Editor’s note: At the request of the author, the title has been changed since the original publication of this post.

Today, in Riley v. California, the Supreme Court held that law enforcement officers may not search an arrested person’s cellphone incident to arrest without a warrant.  Ruling jointly along with United States v. Wurie, the Court held that an individual’s right to privacy under the Fourth Amendment outweighed the interest of law enforcement in conducting warrantless searches of cellphones incident to arrest.  This decision bodes well for the future of technological privacy of arrestees, and may change law enforcement’s procedures of arrest.

Upon the petitioner Riley’s arrest, the police searched his smartphone and found digital evidence potentially connecting him to a shooting, and charged Riley with attempted murder. Riley moved to suppress the evidence gathered from his cell phone, claiming the unwarranted search violated his Fourth Amendment rights. The Supreme Court held although an arresting officer may physically inspect the exterior of an arrestee’s cellphone to ensure their own safety, the data on a arrestee’s cellphone may not be searched without a warrant. The Court’s reasoning was that the interest of an individual’s privacy outweighed the Government’s interest in preventing possible remote data wipes or encryption mechanisms from foreclosing the acquisition of admissible evidence.

The Court’s reasoning establishes a cell phone as closer in kind to an individual’s home than to a piece of property.  And, indeed, many people have just as much (or perhaps more) sensitive information on their phone as in their homes.  Further, the content on an average smartphone is of an incredibly diverse variety, encompassing a far greater range of information than any person could reasonably have on their person before the advent of cellphones.

Riley shows the Court’s willingness to adapt its interpretation of Constitutional privacy rights to address the shifting landscape of privacy in the digital age.  Given the massive changes the tech age has brought in the amount of private material people may have on their persons, the court’s unanimous ruling is a good sign for the concerns of privacy as the industry continues to innovate.  Further, because the Court’s reasoning relies on the similarity of cellphones to “minicomputers,” the Court’s holding seems to apply broadly.  Thus, as long as future technologies can be likened to “minicomputers,” under Riley, they will also be excluded from warrantless searches.

It will be interesting to see how the Court’s ruling plays out in both the course of day-to-day law enforcement and in similar litigation.  First, it seems likely that upon arrest, an officer will place an arrestee’s mobile phone in a Faraday bag as a matter of course, or alternatively police will immediately turn off the phone.  Second, and more interesting, by carving out the exigent circumstances exception, the Court may open the possibility for increased litigation over what constitutes “exigent circumstances,” as the Government will likely seek to expand the definition to support warrantless phone searches.  Still, even if that justification is invoked far more frequently, the justification itself is subject to judicial scrutiny concerning whether the circumstances were truly exigent.  Such scrutiny is not given to searches incident to arrest, which follow automatically from the fact of arrest and need no further justification.  Thus even if the exigent-circumstance justification is invoked more frequently, defendants will have greater opportunity to challenge the search than they would have had before the Riley decision.

Although the Court’s ruling may expand law enforcement’s usage of the “exigent circumstances” exception for warrantless cellphone searches, the Court’s ruling today almost guarantees a reduction in warrantless cellphone searches of arrestees.  Further, it likely will apply broadly to any technology that can fit the model of “minicomputer.”  Thus, the Court’s decision favors individual privacy as it relates to technology, and expands Fourth Amendment rights to better fit the modern age.

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