Riley v. California - Riley v.

California

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HarvardLawReview

FOURTH AMENDMENT

Riley v. California
Leading Case : 134 S. Ct. 2473 (2014)

V 10, 2014

Harv. L. Rev.

o enforce the Fourth Amendments prohibition on unreasonable searches,

the Supreme Court has traditionally prohibited warrantless searches sub-

ject only to a few specifically established and well-delineated exceptions.

However, the Court has in recent years increasingly broadened these exceptions to
the mounting concern of privacy advocates.
California,

Last Term, in Riley v.

1. Katz v. Unite

389 U.S. 347, 3

the Court ostensibly broke from this trend when it examined

(1967).

, Erin

whether one exception searches incident to custodial arrest applied to the dig-

he Supreme

ital contents of cell phones. After weighing the governments minimal interests in

3. 134 S. Ct. 24

these searches against the unique privacy interests at stake, the Court declined to

(2014).

extend the search-incident-to-arrest exception and held instead that officers must
generally secure a warrant before conducting such a search.

Although privacy

advocates applauded Riley for endorsing a rule that protects digital privacy, the
Riley Court relied unnecessarily on a reasonableness balancing test borrowed from
other recent Fourth Amendment cases. In doing so, it signaled the continued rise
of a Fourth Amendment mode of analysis that may not protect privacy as much in
the future.
In Riley, the Court considered two cases presenting a common question.

In

the first case, a San Diego police officer arrested David Riley after discovering
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firearms stashed in a sock under his cars hood.

While searching Riley incident

5. Id. at 2480.

to his arrest, an officer found evidence of Rileys association with the Bloods
7

. Riley, No.

street gang.

2013 WL

phone without a warrant, uncovering further evidence of gang ties.

*1 (Cal. Ct.

8, 2013).

Suspicions aroused, the police seized and searched Rileys smart

8

They also

discovered records that placed Rileys phone at a shooting three weeks earlier.

The trial court judge denied a motion to suppress after finding that the search fell
10

within the scope of the search-incident-to-arrest exception.

Riley was convicted

of assault with a semiautomatic firearm, shooting at an occupied vehicle, and at-

at *3.

tempted murder.

7. See Riley
2480.
9. See Riley

475242, at *1

11

The California Court of Appeal affirmed. In two paragraphs, Judge McDonald disposed of Rileys cell phone search claims on the basis of the California Supreme
Courts decision in People v. Diaz,

12

11. Id. at *1.

which held that a warrantless search of the

text message folder of a cell phone taken from a person during his arrest was con-

d 501 (Cal.

stitutional under the search-incident-to-arrest exception.

agreed with the trial court that Diaz controlled.

013 WL

13

The Riley panel

14

Over half a decade earlier and 2,500 miles away, Brima Wurie was arrested shortly
after consummating a drug deal outside a Lil Peach convenience store.

15

13. Id. at 502.

After

taking Wuries cell phone, officers observed several missed calls from my
house.

16

Without a warrant, the officers flipped the phone open and jotted down

the callers number.

ernal quotaomitted).

17

After tracking the number to an apartment, the officers ex-

ecuted a search warrant and found a drug dealers bonanza: the hidden mother
cache included drugs, a gun, and cash.

18

Wurie was charged with distribution of

15. See United

Wurie, 612 F. S

104, 106 (D. M

2009).
17. Id.

crack cocaine, possession of crack cocaine with intent to distribute, and felony possession of a firearm and ammunition.

19

After his motion to suppress was denied

because the cell phone search occurred incident to his arrest, Wurie was convicted
on all counts.

0911.

20

19. Id. at 105.

The First Circuit reversed the denial of Wuries motion to suppress and vacated his
conviction.

21

Writing for a divided panel, Judge Stahl

22

held that the digital

contents of a cell phone cannot be searched incident to arrest.

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23

He began by ex-

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Stahl was

udge Lipez.

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amining the rationales for the exception, which the Court in Chimel v.
California

24

had established as protecting officers from dangerous weapons and

preventing the destruction of evidence.

S. 752 (1969).

21. See United

25

Judge Stahl reasoned that the case

Wurie,
728
F.3
23.
Id. at
1213
Cir. 2013).
opinion).

turn[ed] on whether the government can demonstrate that warrantless cell phone
searches, as a category, fall within the boundaries laid out in Chimel.

26

But the

25. See id. at 7

government did not claim that officer safety was at issue, and its concerns about
728 F.3d at 7.

evidence destruction were overblown.

27

As a result, such a slight and truly theo-

retical risk was insufficient to justify warrantless cell phone searches, especially
when [w]eighed against the significant privacy implications.

28

27. See id. at 1

The Supreme Court reversed the California Court of Appeal in Riley and affirmed
29

the First Circuit in Wurie.

Writing for the Court, Chief Justice Roberts

30

held

that the answer to the question of what police must do before searching a cell

ustice

phone seized incident to an arrest is . . . simple get a warrant.

31

29. Riley, 134 S

as joined by

mber of the
for Justice

2495.

To assess the reasonableness of this category of searches, the Court conducted a

balancing analysis. First, it examined the governments interests and found them
wanting. The Court openly acknowledged that in United States v. Robinson,

32

31. Riley, 134 S

2495.More
Show
Riley

it

had rejected case-by-case analysis of whether the two Chimel rationales were

S. 218 (1973).

present, but the Riley Court explained that it was instead examining a particular
category of effects: cell phones digital data.

33

Starting with officer safety, Chief

Justice Roberts noted that digital content unlike physical objects could not directly endanger the police.

34

Having dispatched with the first Chimel rationale,

Chief Justice Roberts turned to the second: evidence preservation. The govern-

Similarly,

ment had identified two types of evidence destruction unique to digital data re-

no reason to

mote wiping and data encryption.

problem was prevalent,
means.

36

35

2485.

The Court dismissed both concerns: neither

and each could be addressed through other

37

35. Id. at 2486

Chief Justice Roberts then turned to the other half of the scale: the defendants privacy interests. While an arrestee has diminished privacy interests, that does not
mean that the Fourth Amendment falls out of the picture entirely.

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33. Riley, 134 S

38

37. See id. at 2

For example,
Show
More p

Where cell

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phones are concerned, privacy interests are at their apogee: Quantitatively, cell
phones have an immense storage capacity that houses a vast array of information
moored far into the owners past.

39

Qualitatively, cell phones may reveal de-

tailed information about all aspects of a persons life through browsing history, geolocation data, and apps.

40

Together, these factors belied the governments asser-

39. Id. at 2489

tion that searching cell phone data was materially indistinguishable from search-

490. Compli-

ing physical items.

41

gs further,

Finally, the Riley Court rejected a series of narrower holdings proposed by the
government. First, the government had urged the Court to import a rule from Arizona v. Gant

42

41. Brief for th

StatesMore
Show
at 26,

that permitted a warrantless search of an arrestees cell phone

whenever it is reasonable to believe that the phone contains evidence of the crime

S. 332

of arrest.

43

But the Gant standard would have no practical limit at all in the

cell phone context due to the quantitative and qualitative factors that made cell
phones repositories of individuals private lives.

44

Alternatively, the government

proposed an analogue test that would allow officers to search cell phone data if

2492.

45

en this reality,

they could have obtained the same information from a pre-digital counterpart.

d be a partic-

But this test also lacked real limits, given the expansive functionality of most cell
phones.

43. Riley, 134 S

46

45. Id. at 2493

In a brief concurrence in part, Justice Alito questioned the historical legitimacy of

Chimels twin rationales.

47

He argued that the rationales could not explain the

rules well-recognized scope,

48

and suggested that the search-incident-to-arrest

exception might also rest on the need to obtain probative evidence.

49

47. See id. at 2

Nevertheless, Justice Alito accepted the majoritys rule because we should not me-

(Alito, J., conc

chanically apply the rule used in the predigital era to the search of a cell

part and conc

49.
. at 2495
the Id
judgment

phone.

50

That said, Justice Alito also indicated that he would reconsider the

question presented here if either Congress or state legislatures . . . enact legislation

that draws reasonable distinctions.

51

In its immediate aftermath, Riley was greeted with near-universal praise for its
pro-privacy rule. But the Court reached this holding only by departing from

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51. Id. at 2497

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search-incident-to-arrest precedent. In particular, it ventured beyond the most

simple basis for a pro-privacy rule: recognizing the yawning chasm between cell
phone searches and Chimels rationales. While the Court did acknowledge this
inconsistency, it coupled that explanation with an analysis of privacy interests. A
relative stranger to search-incident-to-arrest doctrine, this balancing approach did
not spawn serious mischief in Riley but may portend less privacy-protective rules
when applied to other cases challenging the constitutionality of warrantless searches and seizures. Indeed, the Court has used a similar balancing approach to issue
several less pro-privacy opinions in recent years. Riley may have set forth a categorical rule only because of intuitively appealing privacy interests and want of a
more moderate alternative. Accordingly, Riley likely does not augur a watershed
turn toward privacy, and instead stands more as a testament to the Courts increasing willingness to determine Fourth Amendment protections through an indeterminate reasonableness test.
Upon its release, Riley was quickly praised as a sweeping victory for privacy
rights.

52

Commentators suggested that the Court had entered the digital age

and fundamentally changed how the Constitution protects our privacy.

53

In

Liptak, Major

particular, observers commended the simple and blunt rule that seemingly left

elds Privacy

no wiggle room for future cases a stark departure from the Courts usually mud-

53. Stephen V

54

How the
Show
More
Supr

dled Fourth Amendment jurisprudence.

In part for this reason, analysts con-

cluded that Riley would likely have far-flung consequences.

Gershowitz,

declared: Riley is the privacy gift that keeps on giving.

55

One scholar

56

m: Surprising
note 53.

These paeans laud Rileys outcome but miss its unusual reasoning. The Riley Court

55. See Marc R

& Alan
Show
More
Butler,

could have arrived at the same rule using the simpler path that Chimel provided.
Chimel established two rationales for searches incident to arrest: officer safety and
evidence preservation.

57

But as Riley itself showed, neither rationale has much

force with respect to digital content on cell phones.

58

This should have been

enough: when both justifications for the search-incident-to-arrest exception are

34 S. Ct. at

absent[,] . . . the rule does not apply.

59

But rather than stop there, the Riley

Court plowed forward and engaged in what one scholar aptly described as a rather
http://harvardlawreview.org/2014/11/riley-v-california/

57. Chimel v. C

395 U.S. 752, 7

(1969).

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unusual excursus.

60

59. Arizona v.

Importing an element foreign to its jurisprudence in this

area, the Court held that the search-incident-to-arrest exception rests not only on
supra note

government interests, but also on an arrestees reduced privacy interests.

U.S. 332,
Show
More
339 (

61

Accordingly, the Court balanced the governments attenuated interests against any
intrusion into privacy occasioned by a cell phone search.

61. Riley, 134 S

2488.

This sort of reasonableness balancing barely figures in search-incident-to-arrest

precedent. The Courts seminal cases naturally stood against the backdrop of individual privacy, but until recently,

62

the Court fixed the scope of the search-

incident-to-arrest exception without regard to the degree to which privacy was

, 556 U.S.

affected.

63

(considering
of privacy

Take Chimel. The Riley Court suggested that the police needed a warrant in Chimel
[b]ecause a search of the arrestees entire house was a substantial invasion beyond
the arrest itself.
analysis

34 S. Ct. at

65

64

of whether it would be reasonable to search a mans house when he

is arrested in it,

66

both because it was not relevant to Fourth Amendment

proach the evaporation point under this type of analysis.

sent that urged reasonableness balancing.

dissenting).

the First
Show
More
Circu

But the Chimel Court expressly disclaimed the unconfined

interests, and because Fourth Amendment protection in this area would ap-

at 77275

63. For examp

67

65. Chimel v. C

In fact, it was the dis-

395 U.S. 752, 7

(1969).

68

Similarly, in Robinson, the Court stated that the search-incident-to-arrest excep-

67. Id. at 765.

tion was based upon the need to disarm and to discover evidence with no mention of competing privacy interests.

69

Even the Riley Court admitted that Robin-

son had focused primarily on the heightened government interests at stake.

70

And once again, it was the dissent that marched under the banner of privacy

69. United Sta

34 S. Ct. at

interests: it complained that the majority had forsaken the individuals interest in

Robinson, 414

ertheless, Ri-

remaining free from unnecessarily intrusive invasions of privacy.

71

While the Riley Courts embrace of reasonableness balancing departs from traditional search-incident-to-arrest doctrine, it perfectly matches the Roberts Courts
broader approach to the Fourth Amendment.

72

In case after case, the Roberts

235 (1973).

71. Robinson

254 (Marshal
dissenting).

Court has liquidated bright-line rules about when a search is unreasonable and
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scholar

ed, tendrils

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welcomed the ascendance of reasonableness balancing as a dominant mode of

constitutional inquiry.

73

In theory, reasonableness balancing invites recognition

of a defendants privacy interests. In practice, though and in contrast to Riley

many reasonableness balancing cases have not favored privacy rights

73. Murphy,

unequivocally.

2, at 183.
Show
More
This

Two Terms ago, for example, the Court held in Maryland v. King

74

that the gov-

ernment may reasonably collect arrestees DNA without a warrant or individual-

Ct. 1958

ized suspicion.

75

It weighed the need for law enforcement officers in a safe and

accurate way to process and identify the persons . . . they must take into
custody
privacy.

76
77

against a minimal intrusion and diminished expectations of

75. Id. at 1980

Over a vigorous dissent, the Court concluded that this balance tipped

in favor of the state.

One year before that, the Court applied a similar methodology in Florence v. Board
of Chosen Freeholders.

78

77. Id. at 1979

It considered whether it was reasonable for detention

centers to conduct an extensive strip search of all new detainees regardless of

Ct. 1510

whether their offenses were serious or reasonable suspicion was present.

79

As in

King, the majority tussled with the dissent over the legitimacy of the governments
interests and the extent of the intrusion on individual privacy, but concluded that

79. See id

the procedures at issue struck a reasonable balance between inmate privacy and
the needs of the institutions.

80

As these examples and others

81

suggest, Riley may prove anomalous in its em-

brace of defendant privacy interests for at least two reasons. First, the Riley Court
dealt with privacy interests both widely shared and intuitively appealing. Second,

81. See, e.g

the Court was unable to find a compromise position short of the categorical rule it

McNeely,
Show
More133

adopted.
First, Riley may have been an unusually pro-privacy decision because of its facts.
Reasonableness balancing tends to value privacy most in cases where government
interests are low but privacy interests are high and universally shared.

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82

Cell

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phone searches implicate privacy interests that are not only substantial, but also
supra
850.

ubiquitous.

83

As several commentators quickly pointed out, the Riley Justices

would understand in an immediate sense precisely what it would mean for their
privacy if one of their phones was to be taken and searched.

84

As a result, Riley

may have turned on the Courts own sense of what is intuitively private.
supra note

But the same balancing approach may minimize privacy interests when they are
not widely shared and therefore less likely to garner judicial empathy, especially
when those interests are closely linked with societys disfavored groups.

86

83. Chief Justi

Roberts
Show
More
put it

85

85. Id.

Past

reasonableness cases reflect this pattern in King, for example, the Justices had
supra note

little to fear from DNA identification tests limited to those arrested for serious

Society will

offenses.

87

Even in Florence, where the Court refused to impose a similar

limitation, members of the majority took pains to limit the Courts holding to arrestees whose detention has been reviewed by a judicial officer.

88

87. Maryland

133 S. Ct. 1958

rence v. Bd.

Freeholders,

Second, Riley may have been pro-privacy for lack of a better alternative. Rileys

(2013).

handwringing about the lack of limiting principles reflects a broader and ceaseless
search by the Roberts Court for doctrinal middle grounds. The Court has often wavered when weighing compelling government interests against severe intrusions on
individual privacy, and been reluctant to revert to either extreme.

89

Instead, it

prefers adopting limiting principles that will plant its decision in the middle of the
road. In King, the Court limited its holding to cases involving an arrest supported
by probable cause . . . for a serious offense
against further invasion of privacy.

33 S. Ct. at

91

90

and where the statute guard[ed]

Similarly, Florence sought to narrow the

89. Cf. Amste

supra note 72

(noting the te

of reasonable

scope of its balancing act, lest the Court lose its purchase on the slippery slope of

balancing).

the Fourth Amendments reasonableness clause. In separate concurrences, Chief

91. Id. at 1979.

Justice Roberts and Justice Alito echoed the primary opinion by emphasiz[ing]
the limits of todays holding.

, 132 S. Ct.

ito, J.,

92

In Riley, similar limitations proved to be a doctrinal holy grail the enticing object of an ultimately doomed quest. The Riley Court was in a desperate search for
middle ground that would have accommodated some governmental interests at

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the expense of individual privacy.

93

But in his concurrence, Justice Alito admit-

ted that he d[id] not see a workable alternative to the majoritys rule.

94

This

confession may help explain Rileys sweeping, pro-privacy outcome ultimately,

93. S.M., Ther

34 S. Ct. at

the Court may have skipped over the middle ground because it could not find a

Show
More
App for
That

o, J., concur-

place to land. Every alternative option either had no practical limit,

t and concur-

judgment).

launch courts on a difficult line-drawing expedition.

96

95

or would

If so, then Riley may have

come out cleanly in favor of privacy, but not for lack of trying.

95. Id. at 2492

opinion).

Four decades ago, a prescient scholar warned against a turn to reasonableness. Despite its allure, he cautioned that if some discipline is not enforced, if some categorization is not done, if the understandable temptation to be responsive to every
relevant shading of every relevant variation of every relevant complexity is not
restrained, then we shall have a [F]ourth [A]mendment with all of the character
and consistency of a Rorschach blot.

97

As the Roberts Courts reasonableness

cases suggest, a Rorschach Fourth Amendment is useful for diagnosing the

pathologies of society and for conjuring sharp lines and borders where none exist.

97. Amsterdam

But a sliding scale approach is less useful for protecting individual privacy, often

note 72,
Show
More
at 37

lapsing into more slide than scale.

98

Riley was a victory for privacy advocates,

and an easy case under reasonableness balancing. The Court is unlikely to be as so-

rdam, supra
394. Indeed,

licitous of defendants rights in future cases if it continues to rely on the same

approach.

Tags: Criminal Procedure, Fourth Amendment, Technology

NOV

14

VOL

128

H A R VA R D L AW R E V I E W

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N O.

2015

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