What’s Past is Prologue to the Future
The High Court began its analysis in Riley by reasserting its holding in Kentucky v. King that “[a]ll searches and seizures must be reasonable; and a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity.” It then went on to apply precedents in three analogous cases controlling the scope of searches incident to arrest of property found close to or on the person of an arrestee. See Kentucky v. King, 563 U. S. ___, 131 S. Ct. 1849 (2011), syllabus.
In Chimel v. California, 395 U. S. 752, 780, 89 S. Ct. 2034 (1969), the Court held that police may search an arrestee’s “person” as well as the area within the arrestee’s “immediate control” to ensure officer safety and to prevent the destruction or concealment of evidence. In United States v. Robinson, 414 U. S. 218, 235, 94 S. Ct. 494 (1973), the Court extended the exception to the warrant requirement articulated in Chimel to also include any “reasonable” Fourth Amendment search subsequent to a lawful arrest, even where there are no specific concerns about the loss of evidence or a threat to officer safety. Arizona v. Gant, 556 U. S. 332, 129 S. Ct. 1710, 1719 (2009), expanded the lawful scope of those searches to include the search of a vehicle recently occupied by an arrestee who is “within reaching distance of the passenger compartment at the time of the search” or when “it is reasonable to believe the vehicle contains evidence of the offense of arrest.”
It is somewhat puzzling that the only reference in Riley to the foundational Fourth Amendment case, Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967), is by Justice Samuel Alito in his concurrence, and that the reference is in the context of whether the question presented in Riley is better suited to a legislative, rather than a judicial, solution. The Katz Court enunciated the principle that the Fourth Amendment “protects people, not places,” in a case involving the government wiretap of a public telephone booth to obtain incriminating evidence against a bookie. Taking note of the telephone as a vital means of communication with attendant privacy rights,the opinion in Katz required the police to obtain a warrant before they were able to wiretap (read “search”) the conversations overheard.
That decision in Katz expressly overruled Olmstead v. United States, 277 U.S. 438, 478–79, 48 S. Ct. 564 (1928), embracing the prophetic dissent by Justice Louis Brandeis in a Prohibition Era wiretap case. Justice Brandeis asserted that the protection guaranteed by the Bill of Rights is much broader in scope than the majority in Olmstead believed, and that “every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth [Amendment].”
Cell Phones Are Different
After the Riley decision, many legal commentators recognized the Fourth Amendment opinion implicating the right to be free of unreasonable search and seizure in a digital age as a portent of things to come. The unanimous decision noted that as to “papers and effects” “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” Orin Kerr, a law professor at George Washington University said, “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” Writing for the Court, Chief Justice John Roberts took judicial notice of that evolving standard of technology, in that cell phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
During the argument in Wurie, Justice Alito asked the respondent’s attorney “what the new expectation of privacy is now” as compared to the “pre-digital era” presumption that “people didn’t have a reasonable expectation of privacy in papers, letters,” photos, and similar items carried in a billfold or on their person. He also wanted to know “[h]ow do we determine whether something has—somebody has a reasonable expectation of privacy in any category of information that is contained on a cell phone?” Although Justice Alito concurred in part and in the judgment, he noted that the Court’s opinion “leads to anomalies” when balancing “law enforcement and privacy interests” favoring “information in digital form over information in hard-copy form.” He then posited that legislatures are in a better position than the courts to properly address these issues.
First Amendment Implications
Apprehension over warrantless cell-phone searches also resonated with news organizations and journalists because of First and Fifth Amendment ramifications. As noted in an amicus brief by the National Press Photographers Association (NPPA) and 13 media organizations, “whose members use modern technology to record, document, and report events”—“[b]ecause of the many ways that journalists and others use cell phone technology, these cases go the heart of the concerns that led the Constitution’s Framers to adopt not only the Fourth Amendment, but also protections for freedom of expression and against self-incrimination.” These inherently interconnected constitutional rights have become even more interrelated with the exponential proliferation of cell phones and their ubiquitous use as cameras, recording tools, communications, research, and storage devices as well as for note-taking. They are not only being used as a means of self-expression but have become the quintessential newsgathering devices of twenty-first century journalism.
First Amendment attorney Robert Corn-Revere, who drafted that amicus brief, also noted in an email that “such strong protections against searches or seizures of persons, houses, papers, and effects were needed so that the government could not engage in fishing expeditions to find seditious writings that could be used to incriminate citizens and thereby stifle free expression,” adding, “the Supreme Court recognized in Riley that it is essential to extend these protections into the Digital Age or else our private lives would be open for scrutiny by the government. This is important for all citizens, but it is especially so for journalists.”
To illustrate the nexus between these constitutional concerns, one only need look at the “Statement of Interest” filed by the U.S. Department of Justice (DOJ) in a federal civil-rights lawsuit against the Baltimore Police Department for the seizure, search, and subsequent destruction of cell-phone video (and other files) depicting the arrest of another person. In Sharp v. Baltimore City Police, No. 1:11-cv-02888-CCB (D. Md. Jan 15, 2010), the DOJ asserted that “[t]he interests animating the Fourth Amendment’s prohibition against unreasonable searches and seizures are heightened when the property at issue is also protected by the First Amendment.”
Warrantless Searches of Electronic Devices at the Border
The American Civil Liberties Union had also challenged these types of searches when they occur at the border. In Abidor v. Napolitano, No. 10-CV-04059 (E.D.N.Y., Sept. 7, 2010) (complaint), the American Civil Liberties Union (ACLU), the New York Civil Liberties Union (NYCLU), and the National Association of Criminal Defense Lawyers (NACDL) commenced a “constitutional challenge to Department of Homeland Security (DHS) policies that authorize the suspicionless search of the contents of Americans’ . . . electronic devices at the international border.” Those “policies apply to all electronic devices that ‘contain information,’ including laptops, cameras, mobile phones, ‘smart’ phones, and data storage devices,” and “permit border agents to search and copy electronic devices without reasonable suspicion.”
The lawsuit was filed on behalf of the National Press Photographers Association (NPPA), whose members include television and still photographers, editors, students, and representatives of the visual journalism profession; the NACDL, which was also counsel on the case; and Pascal Abidor, a then-26-year-old dual French-American citizen who had his laptop searched and held at the Canadian border. Over three years later, in 2013, the judge issued his memorandum & order dismissing the case. While searches within the United States may be distinguished between those that take place at the border, the fact that the Abidor decision involved the same type of “closed container” analysis of electronic devices as in Riley (with far different results), as well as the court’s failure to recognize that such devices are fundamentally different in what they may contain, might give rise to a motion for reconsideration.
As noted by the Chief Justice in Riley, “[t]he term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Dicta such as this have led at least one writer to believe that computers may be a “game-changer” when viewed in the context of Fourth Amendment jurisprudence on warrantless searches; and when read in context with the decision in U.S. v. Jones, 132 S. Ct. 945 (2012) (holding that government installation of a global positioning system (GPS) tracking device on a vehicle and its use to monitor the vehicle’s movements constitutes a Fourth Amendment search), “it might signal that all the Justices are on board the ‘computers change everything’ idea.”
It also supports the prescient dissent by Justice Brandeis in Olmstead that “a principle, to be vital, must be capable of wider application than the mischief which gave it birth” and that to better protect constitutional rights now and in the future “our contemplation cannot only be what has been but of what may be” because “[w]ays may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.” That fear has an even more pernicious boding in searches of electronic devices, especially ones capable of storing or providing government access to large quantities of “qualitatively different” kinds of personal data.
Some may argue that the use of cell phones as a means to carry and access an infinite amount of personal information has become so commonplace an affair in the daily life of the average American as to dissipate any doubt regarding the public’s reasonable expectation of privacy in those files from a warrantless search of their devices. Given the unanimous opinions in Riley and Jones, it will be of great interest to see how the Court moves such jurisprudence forward while recognizing the unique nature of digital data, its essential significance in modern society, and the evolving perception of constitutional privacy rights in such information.
Keywords: civil rights litigation, Fourth Amendment, First Amendment, Fifth Amendment, warrantless search, cellphones, privacy
Mickey H. Osterreicher is of counsel to Hiscock & Barclay and serves as the general counsel for the National Press Photographers Association (NPPA).