Argument preview: Police and cellphone privacy

Next Tuesday morning, the Supreme Court will hold back-to-back, one-hour hearings on cases testing the authority of police to search the contents of cellphones they take from people they have arrested.  The cases are not consolidated.  At 10 a.m., the Court will hear a state case, Riley v. California.  Arguing for David Leon Riley will be Stanford law professor Jeffrey L. Fisher, with thirty minutes of time.  California’s solicitor general, Edward C. DuMont of San Francisco, will represent the state, with twenty minutes.  Deputy U.S. Solicitor General Michael R. Dreeben will present the federal government’s views as an amicus; he will have ten minutes.  At 11 a.m., the Court will hear a federal case, United States v. Wurie.  Deputy Solicitor General Dreeben will again represent the federal government.  Arguing for Brima Wurie will be an assistant federal public defender, Judith H. Mizner, of Boston.  Each will have thirty minutes.

Background

Close to a half-century ago, when cellphones were unknown to the world, the Supreme Court ruled that the Fourth Amendment protects the privacy of an individual who steps into a telephone booth to make a call.  No one doubts that, in some situations today, a caller using a cellphone has some privacy protection.  But does that extend into a police station, when the owner has been arrested and the police take the cellphone?  The Supreme Court, in its latest exploration of privacy in a changing world of technology, will consider that question next week.

Although the Court has made clear that the Fourth Amendment was written for people, it also extends — sometimes — to their “effects,” or items of property.  But the constitutional privacy of property may depend upon where it is found and how it is used.  In fact, if it turns up in a police station, it is not entirely clear how private it remains.

In a 1969 decision, in Chimel v. California, the Court ruled that if police arrest an individual, they may — without a search warrant — search the body of the person and “the area into which he might reach,” perhaps to destroy evidence or to seize a weapon.  That, it said, is to protect the evidence or the officers.  That is the origin of the notion that a police search “incident to arrest” can go ahead without a warrant.

From time to time, the Court has explored variations on the Chimel theme, about police searches of various items individuals had close at hand when arrested, and the Justices are now prepared to look into the seizure of cellphones “incident to arrest.”   Lower courts are in dispute on whether the Fourth Amendment allows them to search the digital contents of such a phone, without first getting a warrant.

Although it is unclear whether, or how much, difference it might make to the Court, the two cases it has chosen to review on that question involve different versions of cellphones: the traditional “flip-phone,” very familiar but perhaps rapidly approaching antique status, and the modern “smartphone,” essentially, a computer small enough to fill only one’s palm, and often loaded with data — much of it potentially very personal to the owner.

When the Court hears those two cases, it won’t follow the historic sequence of cellphone invention:  the more modern smartphone case comes up first.

That case goes back to a shooting incident on the residential streets of San Diego, in August 2009.  A member of a street gang, the Crips, was driving by a parked red car, an Oldsmobile, when several shots were fired at the moving vehicle.  It crashed.  A a group of men who had been standing by the Oldsmobile promptly left the scene.  They later attempted to hide the car under a cover.

About two weeks later, David Leon Riley was driving a different car, when he was stopped for having expired license plates.  A search of the car turned up two handguns, determined by later tests to have been the guns used in the shooting incident.  Riley’s DNA was found on one of the guns.

Police arrested him, and took the smartphone he was carrying.  Police twice checked out its contents, neither time with a warrant in hand.  One of the searches revealed that Riley was a member of another street gang, the Bloods of Lincoln Park, bitter and violent rivals of the Crips.  The police also found photos of Riley standing next to a red Oldsmobile, and videos of him making hand signals which a detective wise in the ways of the street said were the kind used by the Bloods.

Police obtained records of the calls made on the cellphone, showing that the device had been used near the scene of the shooting, at about the right time.  While he was in jail, he was allowed to make some phone calls, and among the monitored calls were conversations with a girlfriend, indicating that he had been at the shooting scene.

He was charged with and put on trial for shooting at an occupied vehicle, attempted murder, assault with an automatic weapon, as well as gang-related crimes that could and did result in a longer sentence after conviction.

Before trial, Riley’s lawyers tried to block the evidence garnered from the cellphone search, but that failed.  The jury at his first trial could not agree on a verdict, so he was tried again.  No witnesses could place him at the scene of the shooting, so prosecutors relied on the circumstantial evidence they had gathered, including the results of the cellphone searches.  He was convicted.  His basic sentence was seven years in prison, but that was lengthened to a term of fifteen years to life, because of evidence of gang involvement.

While his trial was going on, the California Supreme Court had ruled in another case that the search-incident-to-arrest doctrine allowed police to search a cellphone that was immediately associated with a person they had arrested, with the search done at the time of the arrest.  A state appeals court, relying on that ruling, upheld Riley’s conviction and, with that, the evidence from the cellphone was allowed to stand.

The case before the Court on the less sophisticated instrument, the “flip-phone,” originated in a drug deal on the streets of Boston in September 2007.  The police saw a man later identified as Brima Wurie, making what they considered to be a drug sale to another man.  The officer had information that the sale probably had been arranged by a telephone.

The officer confronted the buyer on the spot, and found that he had two bags of crack cocaine in his pockets.  He said the dealer was a South Boston man, whom he knew as “B.”  Other officers followed Wurie from the scene, arrested him, and warned him of his “Miranda” rights.  He was taken to a police station, and officers took from him two cellphones, some keys, and more than $1,000 in cash.

Soon after his arrest, the police noticed that one of the phones was getting repeated calls from a number identified on the screen as “my house.”  The officers opened that phone, and checked its log of calls.  The screen saver on the phone was of a woman holding a baby.  Tracing the telephone number of his house, they located where he lived, on Silver Street in South Boston.  The inspection of the phone was without a search warrant.

Warned again of his rights, Wurie was questioned, and he denied any role in drug dealing, and claimed that he did not live on Silver Street.  Officers suspected, from the evidence they had, that he had some hidden cache of crack.   They drove to the Silver Street address, and found a mailbox with his name on it.  Through a window, they saw a woman who looked like the person pictured on the screen saver.  With a warrant in hand, they searched Wurie’s apartment, turning up crack, marijuana, cash, a gun, and ammunition.

Wurie was charged with being a felon with a gun and ammunition, distributing crack, and possessing the crack with intent to distribute it.  His lawyers sought to bar the evidence taken from his apartment, contending that this was the unconstitutional result of an invalid search of his cellphone’s call log.  The motion was denied, with the judge ruling that the cellphone had been searched “incident to arrest.”

A jury convicted him of the charges, and he was sentenced to a total of 262 months in prison, with various sentences combined to be served together.  On appeal, a divided U.S. Court of Appeals for the First Circuit overturned the conviction on two of the counts, laying down a bright-line rule that the search-incident-to-arrest exception to the Fourth Amendment warrant requirement did not authorize a warrantless search of a cellphone’s contents at the time of arrest, in any circumstances.  Such a search, it said, had nothing to do with officer safety or preservation of evidence.

The panel left intact his conviction on the distribution of cocaine count, with its 240-month sentence intact.

Petitions for certiorari

The two cases moved on to the Supreme Court on separate tracks, David Riley challenging his conviction, and the Justice Department challenging the ruling in Brima Wurie’s favor.

Riley’s petition asked the Court to clarify the circumstances — if any — under which police without a warrant could search the contents of a cellphone taken at the time of arrest.  His petition reached the Court last July, but the state of California chose to waive its right to reply.  The Court asked for a response, but did not act on the case for months, other than to summon the full record of the case as it had unfolded in lower courts.

On January 14, the Justices agreed to hear the case, but changed the question it promised to review.  Focusing only on the evidence actually admitted at his trial, the question asked whether that was obtained in an unconstitutional search.

Riley’s petition argued that the split among lower courts had emerged from divergent threads in prior Supreme Court rulings, and disagreement over whether a cellphone was different from physical containers.  The document also put a heavy stress on the amount of data that was capable of being stored on a smartphone.  The petition was supported by groups of criminal defense lawyers, an electronic privacy group, and a liberal advocacy organization.

The Justice Department’s petition in the Wurie case reached the Court last August.  It asked the Court simply whether the Fourth Amendment allowed police without a warrant “to review the call log of a cellphone found on a person who has been lawfully arrested.”

Wurie responded to the petition, but the Court then held it, apparently waiting for the Riley case to be readied.  The Court granted review in the government case on the same day.

The Justice Department argued that the First Circuit’s “bright-line” rule on cellphone searches in a police station contradicted rulings by other appeals courts and by several state supreme court decisions — including the highest state court in Massachusetts, where the First Circuit sits.  “Particularly given the ubiquity of cellphone use by drug traffickers and other serious offenders, and the important law-enforcement consequences of unsettling search-incident-to-arrest doctrine, the question presented” required Supreme Court review, the petition said.

Briefs on the merits — the Riley case

David Riley’s merits brief sought to clarify further the question before the Court, inserting into it the identity of the evidence used at the trial: “namely, certain digital photographs and videos.”

Nothing contained in the digital record of a smartphone, the brief contended, is capable of threatening the safety of police officers, and once police have taken the device away from the individual, they can take steps to make sure that any evidence it contained would not be destroyed, altered or lost.  The officers can stop the device from receiving any more calls — thus making the contents more secure — by putting it into “a Faraday bag” (a container that allows the device to remain on but electronically blocked from receiving any signals that might alter its digital contents).

But the strongest thrust of the Riley brief is its focus on the capacity of a smartphone, to contain “exponentially greater amounts and types of sensitive personal information than any physical item an arrestee could carry on his person.”  There also is plenty there, it added, that is protected by First Amendment rights, because much of it is “profoundly expressive,” revealing “the thoughts, wonders, and concerns of a phone’s owner.”

In legal terms, the Riley document likened a police search of a cellphone to a “general warrant” of the kind that led the Founders to write the Fourth Amendment into the Constitution.  Before cellphones were invented, the kinds of information they contained was kept private by people in the security of their homes, Riley’s lawyers said.

In a further legal argument, the brief suggested that it would not be sufficient for the Court to search a smartphone based on a “reasonable suspicion” standard.  That concept should be left where it now stands, in the automobile search context, the brief said.  And, finally, the document argued that the search of Riley’s device did not come soon after his arrest, but more than two hours later — ample time for the police to obtain a warrant.

California’s merits brief relied on the incident-to-arrest doctrine, and argued that if Riley’s privacy was threatened, that came with his arrest and gave police the opportunity to search the items he had with him.  Such a search, it argued, was not only justified by officer safety and the securing of evidence, but by the need for identification.

It is preferable, the state contended, for there to be a “categorical approach” that will properly guide police and be practical in the real world.  Moreover, the state said, the examination of Riley’s digital record on the smartphone was a part of the ongoing criminal investigation that police were conducting.

The contents of a smartphone, the state argued, are no different from “wallets, address books, personal papers, or other items that have long been subject to examination by police if carried on the person of an individual who is validly arrested.”

The brief conceded that “new technology may affect Fourth Amendment analysis in complex and unforeseeable ways,” and argued that the speed with which technology changes and the “social expectations” that may come with such development were reasons for the Court to be cautious “in the judicial formulation of new constitutional rules directed at particular types or categories of devices.”

The Justice Department has entered the Riley case in support of California.  Its brief on the merits argued that Riley’s legal team “has not identified a single decision of this Court or any historical or practical basis supporting an item-specific exception” to the search-incident-to-arrest doctrine.

Like the state, the government also contended that the loss of privacy comes with the arrest, and argued that it is crucial for police to continue their investigation “during the period immediately following an arrest in a place where [evidence] is particularly likely to be found.”  It also argued, as the state had, that cellphones are not really different from other containers of information that police have long been allowed to take from arrestees, and examine without a warrant.

The physical characteristics of a cellphone, the government contended, make it uniquely susceptible to concealment or destruction of evidence, in a very brief period of time, even after the device is in police hands.

The Justice Department filing also picked up, from its brief in the Wurie case, suggestions for a possible alternative approach to cellphone searches by police:  a reasonable suspicion standard, or search authority based upon the serious nature of the crime for which an individual was arrested — thus perhaps barring searches when only a traffic offense and other crimes, not likely to involve evidence on a cellphone, were at issue.

On the delay issue, the Department contended that the Court had allowed searches by police of items taken by arrestees much later than was done in this case.

Riley’s appeal in the case has drawn the support of about a dozen amici, about half of which were filed jointly in that case and in support of Wurie in the federal case.  The amici ranged from civil liberties groups to electronic privacy advocates, libertarian groups, criminal defense lawyers, law professors, and media and professional photography organizations.  California’s side in the case is supported by sixteen states and organizations of police and prosecutors.

Briefs on the merits — the Wurie case

The Justice Department’s merits brief in its own case, as expected, overlaps considerably with its filing in the Riley case — stressing the historic power to examine items taken from an arrestee, and arguing against an item-specific constitutional rule for what may be examined “incident to arrest.”

This brief, however, also offered a more extensive objection to the claimed privacy of cellphones based on their capacity to store digital information.  In today’s world, it argued, such devices are much more likely to contain evidence of crime, and are useful in aiding officers in making identifications of those they arrest.

With cellphones, the document contended, there is simply no justification for a blanket rule, such as that laid down by the First Circuit, barring the search of any such device taken from an arrestee.   The courts, it asserted, should not be writing new constitutional limitations on police authority just because “lawbreakers use sophisticated technology rather than pen and paper.”

The “reasonableness” standard of the Fourth Amendment should govern, it argued.  And it was in the context of that argument that the Justice Department suggested the less intrusive approaches that the Court might adopt if it were inclined to impose some limitation on cellphone searches in police stations.

Brima Wurie’s brief on the merits, like Riley’s, focused primarily on the lack of a threat by seized cellphones to officer safety or loss or alteration of evidence, stressed the important privacy interests in cellphone contents, and argued that it is easy for police to secure such devices and thus gain time to get a warrant from a neutral magistrate before undertaking to examine its contents.

Aside from the overlapping amici briefs from the Riley case, there are others from similar advocacy organizations in the Wurie case.

Analysis

The Supreme Court has shown in recent cases examining constitutional questions surrounding new technology that it will seek to understand the workings of such devices or processes, and then proceed with caution in fashioning legal responses that might inhibit innovation later on.  There is no reason to expect it to do differently in these back-to-back cases.

In terms of the technology, the Court will find itself confronted with diametrically opposite arguments about the nature of the new devices:  their capacity to be great electronic albums of vast amounts of private and sensitive information, and their capacity to be troves of information revealing criminal plots and actual evidence of violence as well as of data that is a rich lode of leaks to other evidence.

If it is more impressed with the former, then a blanket exemption from the warrant requirement of the Fourth Amendment is not likely to emerge.  If, on the other hand, it finds more compelling the latter view of cellphone capacity, then a decision easing the warrant requirement if not removing it entirely has a chance to emerge.

The Justice Department implied, from its filings in both cases, that it is sufficiently unsure about how to gauge the Court’s likely response to its no-warrant requirement that it was willing to suggest some accommodation of privacy interests.  That is a fallback argument, to be sure, but it does have the capacity to draw the Court away from stark, either-or choices.

The differences in the two types of cellphones — what they can do and what they contain — may reinforce the idea that the Court is witnessing technology advance before its eyes, and that could reinforce the instinct to decide these cases narrowly.  It could be that the Court would be more inclined to permit a search of a flip-phone than of a smartphone.

Hearing the cases separately, rather than in a single hearing, could serve to highlight the differences in the two devices.