[On June 27, 2014, Charlotte Privacy & Data Security Member Karin McGinnis and Senior Counsel Todd Taylor published the following update regarding the U.S. Supreme Court decision in Riley v. California, 573 U.S. ___ (2014)] On June 25th, the Supreme Court brought the Fourth Amendment into the digital age with its ruling in Riley v. California. The case presented the question of whether a warrant was required in order for law enforcement to search a cell phone found on a suspect during the course of an arrest. Chief Justice Roberts, writing for a unanimous court, stated clearly “[o]ur answer to the question of what police must do before searching a cell phone … is accordingly simple – get a warrant.”
Prior to the Court rendering its decision, it was not at all obvious that Riley would result in a limitation on the government’s power to conduct searches.
In earlier decisions (some of which stretched back nearly half a century), the Supreme Court had created an exception to the warrant requirement for searches incident to arrest. Under this exception, the courts allowed the police to search a suspect in custody (and the area within the suspect’s immediate control). This exception was justified under the theory that the police had the right to both protect themselves against the use of weapons and the destruction of evidence that might be within the suspect’s immediate reach. In United States v. Robinson, the Supreme Court extended the search incident to arrest exception to allow the police to not only search the actual suspect who was in custody, but also to open and search any items found on the suspect. In Robinson this led to the Court upholding a search of the inside of a pack of cigarettes that had concealed heroin.
In Riley, the State of California tried to rely on this early line of cases, but the Supreme Court did not buy the State’s argument – holding (quite logically) that cell phones were not weapons and they were not packs of cigarettes. Rather smart phones were mini-computers capable of storing an incredible amount of data about the lives, habits and interests of their owners. Absent a warrant, the police could not search the actual phone itself.
Given the ongoing controversy regarding the power of governmental agencies such as the NSA to engage in surveillance activities of electronic communications, Riley does serve as a check on some governmental search powers over digital devices. Still, privacy advocates should probably not celebrate too much just yet – after all, Riley was, by it terms, directed to limiting the power of the police to search cell phones and smart phones of a person already in police custody. It is not immediately clear what impact (if any) the decision may have over other governmental surveillance programs or over privacy rights in the private sector. But Riley and other recent decisions do point to an increasing willingness of the courts to rein in at least some governmental search power in this new digital age.