The Founding Fathers were extremely concerned about the ability of the government to enter a person’s home with a broad, general warrant or no warrant at all and search papers, correspondence, pictures, calendars, etc., for evidence of criminal activity. “The Framers abhorred this practice, believing that ‘papers are often the dearest property a man can have’ and that permitting the Government to ‘sweep away all papers whatsoever,’ without any legal justification, ‘would destroy all the comforts of society.’ Entick v. Carrington, 95 Eng. Rep. 807, 817–18 (C.P. 1765).” United States v. Ganias, 2014 U.S. App. LEXIS 11222, at *20–21 (2d Cir. June 17, 2014). “Opposition to such searches was in fact one of the driving forces behind the Revolution itself.” Riley v. California, 573 U.S. ___, 2014 LEXIS 4497, at *50 (June 25, 2014). But the framers of the Constitution are unlikely to have ever imagined that all of the documents in a person’s home—indeed, all records of one’s life and business—could be stored on a single device small enough to fit in a suit pocket. Such is the issue in two recent cases that have applied Fourth Amendment search-and-seizure concepts to modern technology. These cases held that the government overstepped its authority in searching a cell phone incident to arrest without a warrant and in retaining indefinitely a mirror image of a computer hard drive even if initially seized pursuant to a valid warrant.
Riley v. California—The government needs a warrant to search your cell phone.
In a unanimous opinion, the U.S. Supreme Court held in Riley v. California that, absent exigent circumstances, a warrant is needed to search a person’s cell phone, even if that cell phone was seized incident to a lawful arrest. In Riley, the defendant was stopped for driving with expired registration tags, and the car was impounded. During an inventory search of the car, police found two handguns under the car’s hood and arrested Riley for possession of concealed handguns. In searching Riley incident to the arrest, police seized a cell phone from his pocket. At the police station, police searched the contents of the cell phone. They found evidence of Riley’s connection to gang activity, including a photograph of Riley in front of a car that was suspected to have been involved in a shooting a few weeks earlier. Ultimately, Riley was charged in connection with that shooting, evidence from his cell phone was used at trial, and he was convicted.
The Supreme Court analyzed the case in light of various “search incident to arrest” cases that generally allow police to search a person being arrested and his or her surrounding area because of the potential risk that the arrested person may have a hidden weapon to harm officers or may be able to destroy evidence. However, the Court noted that “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.” Riley, 573 U.S. ___, 2014 LEXIS 4497, at *23. Additionally, while there is a risk that information on a cell phone may be vulnerable to evidence destruction—via remote wiping or data encryption—the Court held that there are means to address those concerns such as removing the phone’s battery or placing the phone in a “Faraday bag,” which is a bag made of aluminum foil that isolates the phone from radio waves.
Importantly, the Supreme Court was struck by the massive volume of information that can be placed on a cell phone, technology that has become more than just mobile telephones; they are cameras, video players, rolodexes, calendars, audio recordings, libraries, diaries, albums, televisions, maps, and newspapers. Additionally, the information stored on a phone could reveal more in combination than in a single isolated record. For example, the phone may contain an address, note, prescription, bank statement, and photograph that are all interrelated. As another example, the Court noted that a person may carry in his or her pocket a written note as a reminder to call Mr. Jones, but a person would not carry a record of all of his or her past communications with Mr. Jones, as may be contained on a cell phone. Also, cell phones contain Internet browsing history and may contain a range of applications that could further reveal the private life of a person.
The Court noted, “[I]n 1926, Learned Hand observed that it is ‘a totally different thing to search a man’s pockets and use against him what they may contain, from ransacking his house for everything which may incriminate him.’ United States v. Kirschenblatt, 16 F.2d 202, 203 (CA2).” Riley v. California, 573 U.S. ___, 2014 LEXIS 4497, at *39 (June 25, 2014). Here, in acknowledging the reality of modern digital life, the ubiquity of cell phones, and the vast data that they contain, the Court reversed the California Court of Appeal’s affirmation of the conviction and ruled that cell phones cannot be searched without a warrant, absent exigent circumstances.
United States v. Ganias—The government cannot retain indefinitely every file on your computer even if a mirror image of the computer was lawfully seized.
In Ganias, the Second Circuit expressed similar concerns as the Supreme Court in Riley about the challenge of applying Fourth Amendment protections and jurisprudence to modern computer files and the ability of computers to store massive volumes of data. And, like the Supreme Court, the Second Circuit also limited law enforcement’s ability to retain and search electronically stored data, albeit in a slightly different context. In Ganias, the court held that the Fourth Amendment does not permit officials executing a warrant for the seizure of particular data on a computer file to seize and indefinitely retain every file on that computer for use in future criminal investigations.
The defendant, Stavros Ganias, performed accounting work for two companies that were under investigation related to allegations of improper billing and theft of items by one of the companies that had a contract to provide security and maintenance at a vacant Army facility. As part of the investigation, law enforcement obtained a warrant to search Ganias’s offices, including his computers, for information related to the two companies. As is common, the agents did not physically seize Ganias’s computers; instead, they made identical mirror images of the computers, which included copying each and every file on the computers. Almost two years later, the agents expanded their investigation to include possible tax violations by Ganias himself. Two-and-a-half years after the agents obtained the mirror images as part of their investigation of the companies, they obtained a new warrant to search the same mirror images. This time, the search was for evidence related to possible tax violations by Ganias. Ganias was later indicted for tax evasion, and the evidence from his computers was admitted over objection at trial, where he was convicted.
In its opinion, the court noted that, “[l]ike 18th Century ‘papers,’ computer files may contain intimate details regarding an individual’s thoughts, beliefs, and lifestyle, and they should be similarly guarded against unwarranted Government intrusion. If anything, even greater protection is warranted.” Ganias, ___ F.3d ___, 2014 U.S. App. LEXIS 11222, at *22. The court noted that computers can store massive amounts of data that could take months to review and would be impractical and, with the ability to create mirror images, unnecessary for agents to occupy a person’s home or office to review. While the government can make such mirror images pursuant to a warrant, the court held that the government’s retention of copies of Ganias’s personal-computer records for 2.5 years “deprived him of exclusive control over these files for an unreasonable amount of time.” Id. at *29. Further, “[t]his was a meaningful interference with Ganias’s possessory rights in those files and constituted a seizure within the meaning of the Fourth Amendment.” Id. at *29–30. The fact that the government later obtained a new search warrant to search the files related to its investigation of Ganias did not cure the defect in wrongfully keeping the retained files. Therefore, the circuit court reversed the lower court’s denial of the defendant’s motion to suppress and vacated the conviction.
Implications of Rulings
The holdings in these cases are straightforward. Absent exigent circumstances, police officers may no longer search the contents of cell phones that are seized pursuant to an arrest. Instead, a search warrant is required. Computers that are copied pursuant to a valid warrant may not be retained indefinitely.
These holdings do place some limits on law enforcement. However, in applying the Fourth Amendment to the digital age, the courts found that these searches violated the prohibitions on unreasonable searches and seizures. More broadly, these cases signify that courts are acknowledging that all documents, pictures, and other information that could be kept in one’s house (subject to search only upon a warrant) can now be kept on a device in one’s pocket, and constitutional protections against an unreasonable or warrantless searches of a man’s castle extend to devices that can store all of that information in a small place.
Keywords: criminal litigation, Fourth Amendment, search and seizure, Riley v. California, United States v. Ganias, smartphone, cell phone, PDA, retention of mirror image, hard drive
Aaron M. Danzig is a partner at Arnall Golden Gregory LLP in Atlanta, Georgia.
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