Look Here: 4th Amendment Musings

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Search and Seizure in the Digital Age
Thursday, January 26th, 2017
Look Here: 4th Amendment Musings - Jan2017

Our ever-growing digital society has made non-reliance on technology almost impossible. There is an application that applies to every facet of life. With one swipe, a person can access millions of photos, bank information, years of dialogue, and so much more.

With the increase of digital usage, there are growing legal issues that arise. However, despite the number of upgrades in technology, the foundation of all search and seizure issues is the Fourth Amendment. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath and affirmation and particularly describing the place to be searched and the person and things to be seized.

A warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendment’s warrant requirement. Before Riley, officers relied on the exception of a search incident to a lawful arrest to search cell phones and their contents. There were cases that led to the ruling in Riley v. California. The first was Chimel v. California, which allowed for a search incident to arrest limited to the area in the immediate control of the arrestee, where it is was justified by the interest in officer safety and preventing evidence destruction. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L.Ed. 2d 685.

The holding in Chimel was furthered with the holding in Robinson. Robinson was pulled over for a traffic violation, arrested, and then searched. During the search of a closed cigarette pack police found heroin. In Robinson the Court applied the holding in Chimel to the search of the cigarette pack on Robinson. The court in Robinson extended the holding in Chimel, in stating that the risks identified in Chimel are present in all arrests. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L. Ed.2d 427.

Despite the holding in Chimel and Robinson, the Riley court declined to extend their holdings. Rather, the justices found that the search of digital information on a cell phone does not further the government interest identified in Chimel, and implicates a substantially greater individual privacy interest than a brief physical search. Riley v. California, 134 S.Ct. 2473 (2014).

In the Riley case, two cases were consolidated for appeal to discuss whether the warrantless search of a cell phone incident to arrest was a violation of the Fourth Amendment. Police officers stopped Riley for driving with expired tags. Ultimately, officers discovered that Riley’s driver’s license was suspended. He was arrested, and the officers conducted an inventory search of his vehicle. During the search, officers found two handguns. Officers searched Riley, incident to the arrest, and seized Riley’s cell phone. Riley’s phone was a smartphone. On the phone, officers found evidence of gang affiliation and photos of Riley that allegedly connected him with a recent shooting. Based on the evidence found during the warrantless search of Riley’s phone, Riley was charged with firing at an occupied vehicle, assault with a semiautomatic, and attempted murder.

Riley was convicted on all three counts and received an enhanced sentence of 15 years to life in prison. The California Court of Appeals affirmed No. D059840 (Cal. App. Feb. 8, 2013), App. to Pet. for Cert. in No. 13-132, pp. 1a–23a. The court relied on the California Supreme court’s decision in People v. Diaz, 51 Cal. 4th 84, 119 Cal. Rptr.3d. 105, 244 P.3d 501 (2011), which held the Fourth Amendment permits a warrantless search of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the arrestee person.

The second case that was combined within the Riley v. California appeal was regarding a defendant named Brima Wurie. In the Wurie case, a police officer conducting surveillance observed Wurie in a drug transaction. Wurie was arrested for his alleged conduct and taken into custody. Once Wurie made it to the police station, the officers seized his cell phone. Unlike Riley, Wurie did not have a smartphone. Wurie had a flip phone. While the police were in possession of Wurie’s phone, numerous calls were coming in. The log on Wurie’s phone identified the caller as “my house” on the phone. The officers also found photos of a woman and a child. The officers used the information obtained from Wurie’s phone to get a search warrant. When the search warrant was executed, 215 grams of crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash were found. Wurie was subsequently charged with distributing crack cocaine, possessing crack cocaine with intent to distribute, and being a felon in possession of a firearm and ammunition.

Wurie moved to suppress the evidence obtained from the search warrant based on the evidence obtained being fruits of an unconstitutional search of his cell phone. The district court denied his motion and sentenced him to 262 months in prison. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions. The First Circuit held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

Digital data within a cell phone or stored on a computer does not present the same concerns as other evidence. In a majority of circumstances, a phone cannot be used as a weapon. More so, most digital devices have backups, which ease the concern regarding evidence destruction. The Court in Riley deciphered information on a cell phone from other evidence usually found on a person due to its personal nature. The court in Riley held that a warrant is generally required before a cell phone search. The warrant requirement is an important component of the Fourth Amendment.

Riley v. California requires officers—absent exigent circumstances—to obtain a search warrant, a huge victory and confirmation of the Fourth Amendment in a digital age. However, the issue that Riley does not address is the extent of the scope of the search. When officers obtain a search warrant for computer or cell phone files, they are primarily sent to peruse through the digital files of an accused looking for a needle in a haystack. The officers, in searching for responsive items to a search warrant, also have access to unresponsive documents that are private to the accused. The Fourth Amendment does not only prohibit unreasonable searches; it also prohibits general searches. The core historical role of the Fourth Amendment was to prohibit general warrants, which is a warrant that does not state in particularity where the warrant can be executed and what items the agents can search for or seize. Stanford v. Texas, 379 U.S. 476, 480-86 (1965).

In a digital age, the defense is faced with the need to protect our clients from unreasonable searches and seizure and the over seizure of information based on general search warrants.