Smartphones dial up a controversy over search warrants

McClatchy Washington BureauOctober 1, 2013 

— David Riley’s smartphone ratted him out.

San Diego police used photos and videos found on Riley’s Samsung Instinct device to connect him to a gang-related shooting. Convicted on attempted murder and other charges, the 22-year-old is doing time at California’s Kern Valley State Prison.

Now, he’s calling the Supreme Court.

In a case that’s unique to the iPhone era, justices are being asked to consider whether police need a warrant to search the capacious and sometimes incriminating digital files many people now carry in their pockets. So far, the question has divided judges.

“No one is saying that police should not be able to seize a smartphone,” Jules Epstein, a professor at Widener University School of Law, said in an interview Tuesday. “The question is, can they open it? Can they open the folder called ‘photos’? Can they go through my last 10 Google searches?”

On Monday, Sept. 30, Riley’s petition was one of dozens put on the docket for potential consideration by Supreme Court justices meeting in a private conference. At least four justices must agree for a petition to be granted and the case set for full argument, and most petitions fail. No decision was issued for the Riley case on Tuesday.

But his case has some definite buzz. His lead appellate lawyer is Jeffrey L. Fisher of the Stanford Law School Supreme Court Litigation Clinic, who argued four cases before the high court last term. Only three attorneys appeared more often during the 2012 term.

The omnipresence of smartphones and the split opinions from different courts could also help Riley get a hearing. An estimated 91 percent of U.S. adults now own a cellphone, and 61 percent of these are info-packed smartphones such as Apple’s iPhone, Google’s Android and Samsung’s Instinct.

“In light of the frequency with which people are arrested with cell phones and the judiciary’s confusion over whether the police may search the devices’ digital contents, this court’s intervention is critical,” Fisher and his colleagues wrote in a brief.

The Supreme Court has previously ruled that police may conduct certain warrantless searches “incident to arrest” without violating the Fourth Amendment prohibition against unreasonable searches and seizures. In 1973, for instance, the court approved a search in which Washington, D.C., police patting down a man in custody found heroin inside a crumpled cigarette pack.

Smartphones are really different, Riley’s lawyers say.

“Modern cell phones provide ready access to a vast array of personal data, and are distinct from the types of possessions, such as cigarette packages and footlockers, this court has previously considered,” Fisher said in the brief. “For one thing, while physical containers face obvious space-related constraints, cell phones are capable of storing a virtually limitless amount of information in a single, compact device.”

Three appellate circuits have, nonetheless, upheld warrantless searches of cellphones. One federal appellate circuit has struck down such searches, as have some state supreme courts. In May, in a case arising from a Jacksonville, Fla., robbery, the Florida Supreme Court struck down a warrantless search of a cellphone taken from a suspect before he was placed in a police car.

The cellphone included incriminating photos. One showed the suspect’s fiance holding a bundle of money a day after the robbery.

“Electronic devices that operate as cell phones of today are materially distinguishable from the static, limited capacity cigarette packet in (the 1973 D.C. case) not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices,” Justice R. Fred Lewis wrote for the Florida Supreme Court.

In a separate case, justices are being asked to rule on a warrantless search of conventional telephone information found on a non-smart cellphone. Potentially, the court could take up both cases.

“Particularly given the ubiquity of cell phone use by drug traffickers and other serious offenders, and the important law enforcement consequences of unsettling search-incident-to-arrest doctrine, the question presented now requires an authoritative answer from the Supreme Court,” Solicitor General Donald B. Verrilli Jr. wrote in a petition.

Riley’s case began in August 2009, when he was driving near his San Diego home. Police pulled him over for an expired tag and discovered he had a suspended license. When they searched his car, they found two firearms hidden under the hood.

Conducting two warrantless searches of Riley’s smartphone, detectives found photos and videos that intrigued them. One photo showed Riley posing in front of a red Oldsmobile that the police suspected had been involved in a prior gang-related shooting. A video showed street boxing, in which Riley could be heard shouting gang-related comments.

Riley’s attorneys tried, without success, to block prosecutors’ use of the photos and videos on the grounds that the police search violated the Fourth Amendment. Convicted as a gang member, Riley was sentenced to 15 years to life.

The California Legislature passed a law in 2011 requiring police to obtain a search warrant before searching the contents of any “portable electronic devices,” but it was vetoed by Gov. Jerry Brown. The issue, Brown said, needs resolution by the courts.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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