Blind Justice Texting on Her Phone

What follows is a paper I wrote for the Criminal Law class I’m taking. I think you, my readers, will find it an interesting case when you read it, and my analysis. What is the future of digital privacy, and is there a way to retain our privacy in the era of the Cloud and pervasive internet? 

Riley v. California 


Section 1

Summary of Facts:

In the first case connected with this decision, the person of interest was stopped for a traffic violation. After the stop, the officers arrested him on weapons charges and during the search provoked by his arrest his cell phone was seized. The officer who took the phone looked at the information on it, and two hours passed before another officer looked at the phone again, after the first officer noted gang terms. The second officer went through the photos and calls, and linked Riley to a shooting that had taken place before the arrest. Based on this information, further charges were brought against Riley. Riley asked to have the information from the phone suppressed as there had been no warrant to allow the officers to go through it. (case 13-132)

In the second case regarding Wurie, a cell phone was again taken immediately following arrest. Because the phone was being called over and over, the officers opened it and saw where the calls were coming from. They then accessed the number on the phone and traced it externally via that data. Finally, they used the location from the number to get a search warrant that netted them enough evidence to charge Wurie offenses. Wurie asked to have the search of his home suppressed on the grounds that the phone number was obtained without a warrant, from his cell phone. (case 13-132)

Issues Presented to the Court For Review:

In Riley’s case the trial court refused to disallow the evidence, and the California Court of Appeal backed them up. In Wurie’s case, the District Court refused to throw out the evidence, but the First Circuit did not back them up, and Wurie’s convictions were overturned. The cases proceeded to the Supreme Court of the United States as a bundle, in that they shared the same trait: ‘digital information on a cell phone seized from an individual who has been arrested.’ (case 13-132)

SCOTUS had to review whether the cases fell into the established exception to searches conducted without a warrant: that is, incident to arrest. The precendents were Chimel v. California, where searches were allowed to protect the arresting officer(s) and to prevent the destruction of evidence. United States v. Robinson, where items such as a cigarette pack were allowed to be searched for small items or information. Finally, in Arizone v. Gant, the search of a vehicle was allowed, within reach of the person arrested. (case 13-132)

Decision of the Court:

SCOTUS decided that the information on a phone was not open to inspection without a warrant. It did not have anything to do with an officer’s safety, and it was overly intrusive on the privacy of the arrested individual. The concern that destruction of evidence could happen through remote wiping of a phone is allayed through use of technology that prevents this. Therefore, searching a phone incident to an arrest prior to obtaining a warrant is unnecessary. The Court also holds that the search of a person of physical objects is far less invasive than rummaging through the digital information stored on a cell phone. The presence of the information on a person is then complicated by the extension of that information into the cloud. The search of a cell phone then becomes more comparable to the search of ‘papers’ as held in the Constitution, and certainly inappropriate to do without a warrant. (case 13-132)

The Court’s decision will likely make police work somewhat more difficult, but the attempt to define what information would have a physical analog and could therefore be open to search is too broad and would open courts to even more difficult decisions. There was no dissenting opinion, per se. as Justice Alito concurred although he differed in some part. (case 13-132)

Section 2: Analysis of the Case

I agree with the Court’s decision in this case. A cell phone is not the same as an address book, as it was handled in the Wurie case, and it is in no way a threat to an arresting officer. I also agree that attempting to create a guideline purportedly for police to follow in obtaining ‘this much but no further’ evidence for a phone would be a temptation too great for officers. Better to simply make it off limits and work on the permission to grant a warrant and search the phone then. In Wurie’s case, we see that temptation in that despite having argued that the only information gathered was from two clicks of buttons, there was also a photograph of Wurie’s wife accessed and used. Yes, the same information would have been in an address book and wallet photo. But the disingenuous argument of only two buttons laid against the admission of the use of a photograph illustrates how difficult it would be to limit the information gathered through a warrantless search of a cell phone.

In the Riley case, the lapse of time between the arresting officer’s perusal of the phone and the more in-depth search of the phone by a specialist would have, and should have, allowed for a search warrant to be obtained. In this case, the temptation to acquire more evidence immediately outweighed the need for patience to proceed within the bounds of due process, and by this, the officers negated their initial good work.

The court’s decision pointed out that the officers themselves are not supposed to make these decisions. There is a reason that the delegation of theoretically detached decisions is to be handed off to judges and magistrates. The police are too close to see clearly, and they are prejudiced already against someone they have arrested – they would hardly have arrested a person they did not suspect of a crime, even if not convinced entirely.

Section Three: The Future of Privacy Rights

While it can be difficult to look at the two people at the center of this argument and see beyond their records, and to say that we must make the work of the police harder than it could be, it is necessary. For every criminal that could arguably walk free, for at least some time if not forever, there is a need to protect the innocent. We are not guilty upon arrests, as citizens of the United States. We are not guilty upon suspicions raised against us. To allow warrantless searches of the cell phone is to invite the worst sort of tyranny to triumph and prevail over the rights codified in the Constitution. Not granted to the people by the Constitution, as they existed before that document, but they were outlined there, and the rise of technology must not be used as a path to sidestep the clear meaning of those rights to privacy, and freedom of invasion of one’s person, home, or papers. The modern cell phone is a clear analogue of the ‘papers’ as we define them from the culture in place at the time of the penning of the Constitution.

By making the police’s job harder, here I would say that we make the lives of the people better. A more scrupulous force of men and women upholding the laws cannot be a bad thing. Defining what they can and cannot do to the unconvicted citizen is not a burden, but a necessity. The cellular phone holds information of the most intimate nature, and reaching far beyond the physical form of the phone found on a person’s body. That same information pertains to the home, the financial affairs, to the comings and goings of a private citizen and the police must be adjured to procure that information in the ways they have previously done, and with the due process of a warrant, instead of seeking the easy way out just because it lies within their hand.

As for what lies in the future, it is clear that the cell phone is only the chrysalis technology is wrapped in for the moment. Apple just launched a relatively expensive product with vintage roots – Dick Tracy’s watch – and it is inevitable that in the wake of this release will follow dozens of more affordable competitors. What will come next? Implantable technology exists, and it is only foiled in being launched on the mass market by the existence of pathogenic biofilms. Unlock the secret to preventing a film of microbes from taking root on it, and implants will be next. So will ubiquitous wireless or cellular technology. Our lives will literally be spread through the air surrounding us. What lies in the future of privacy? There is no privacy in the future. We live on the web, and the eyes are all around us.

If for a time we can keep those eyes blindered with the veils of the law, then we should do so. Only by blinkering the men who interact with the private citizens can we hope to achieve fairness of the law at the street level. Can you imagine knowing every peccadillo, every possible crime that a person has committed immediately upon contact with them? Trust and assumption of innocence become impossible even to the most reasonable person.

"Law place du Palais-Bourbon Paris" by Marie-Lan Nguyen (User:Jastrow) - Own work. Licensed under CC BY 3.0 via Wikimedia Commons -
“Law place du Palais-Bourbon Paris” by Marie-Lan Nguyen (User:Jastrow) – Own work. Licensed under CC BY 3.0 via Wikimedia Commons –


4 responses to “Blind Justice Texting on Her Phone”

  1. Nice analysis, and even better impassioned cry for freedom.

    That “Officer Safety” exception is still bogus when extended to a vehicle. That a municipality isn’t willing to pair up officers is no excuse to conduct a search further than the immediate person of a suspected criminal. Thrift, when it compromises rights, is not a virtue.

    We’re finally past the criminal abuse of Dog Alerts, or at least to the point that holding a suspect till a dog handler can be called is no longer permitted.

    Handlers can easily get their dogs to “alert” just by their expectations being understood by the animal. Such searches ought to be put in the same category as polygraph testing. Voodoo science at best, sympathetic magic at worse, with the emphasis on “pathetic”

    It’s past time to fight to return to the days that Sheriffs asked permission to enter or cross ones property unless in “hot pursuit” much less laid hands on a citizen unless they were under arrest.

    Got solid investigations will still solve crimes and get convictions without compromising the rights of innocent Citizens going about their customary business,

    Local government’s unwillingness to spend money in no way, shape, or form, justifies trampling a Citizen’s rights.

    1. And it is possible to get convictions by following the rules that have worked in the past. It’s simply that it would be ‘easier’ to be able to search cell phones on the spot without a warrant… and that’s not a slope any of us want to start down. There needs to be cause, and that’s what the warrant is about, proving that there is a reason to look, not just fishing to see what they catch.

  2. Important case, well reasoned paper, and a GREAT example of multi-purpose writing! I once took a single (exhaustive) research paper through three separate courses. If you can use the paper in class, use it in a blog, and then incorporate it into a story, you hit the trifecta!

  3. Wyldkat Avatar

    From a (ex) LEO’s perspective —

    ((Keeping in mind that my knowledge of this topic is decades old now. I got my CJ degree in 1987 from a small college in Dayton and I have been out of uniform for 20 years.))

    These are interesting choices as both fall under the nominal category of “Search Incident to an Arrest”, where typically permission from the subject, or a warrant, is not required. However, Incident to an arrest is usually limited to the immediate area, like room or car and to objects that might present a threat to the officer(s) and/or civilians in the area; it would not include opening and searching mail. In today’s tech driven world, our cell phones, tables, etc, are the electronic equivalent of paper mail.

    I would have thought the initial decisions would be the other way around though. The time delay in the Riley case should negate the “incident to an arrest” clause. The phone ringing in the Wurie seems more in keeping with the scope of an arrest, akin to answering your home phone or hearing the answering machine engage.

    In the Riley case, I probably would have bagged and tagged the phone as property. In the Wurie case, when it kept ringing I probably would have looked to see who was calling and taken note of the number. I don’t know if I would have done anything else. I was just a street officer and cell phones existed only in their infancy then.

    “The police are too close to see clearly, and they are prejudiced already against someone they have arrested – they would hardly have arrested a person they did not suspect of a crime, even if not convinced entirely.”

    -laugh- Too True!

    You make some valid points. (And for the record, I agree 100%) I just wish that our DOJ and the rest of the alphabet soup in Washington were held to the same standards as the local law enforcement officers.

    Well done. I hope you get a good grade.