Cell Phones After Riley

Cell Phones After Riley

The authority to search an arrestee's person reaches the containers and personal effects the arrestee is carrying.¹ In United States v. Robinson, an officer arrested a driver for driving with a revoked license, felt an object the officer could not identify in a coat pocket, and opened the crumpled cigarette package it turned out to be, which held 14 capsules of heroin.² The Court upheld that search without asking whether weapons or evidence were likely to be found, because the authority to search the person incident to a lawful custodial arrest does not depend on the probability, in a particular arrest, that either would turn up.³ The question for a modern phone is whether that categorical rule reaches a device that can hold a person's whole digital record. Riley v. California answered by dividing the phone into two things: officers may inspect its physical aspects, but they may not search its digital data without a warrant.⁴

The Court decided two arrests together. Riley was stopped for a traffic violation and arrested on weapons charges; an officer took a phone from his pocket, looked through it, and noticed the entry “CK-Fred” in the call log, which the officer took to refer to a street gang, and about two hours later at the station a detective who specialized in gangs examined the contents further and found videos and photographs that seemed gang-related.⁵ Wurie was arrested after an apparent drug sale, and at the station officers took a flip phone from him, noticed repeated calls from a source labeled “my house,” opened the phone, pressed buttons to reach its call log, and traced the number to an apartment, where a later warrant search turned up 215 grams of crack cocaine, a firearm, and cash.⁶ Both cases asked what a lawful arrest lets officers do with a phone once they hold it. The answer has three parts, which this section takes in turn: the physical inspection the Court allowed, the reasons it refused to carry Robinson over to data, and the options that remain for officers who want the data.

Physical Inspection of the Phone

Officers who seize a phone incident to arrest may examine its physical aspects to make sure it will not be used as a weapon.⁷ The permission comes straight from the first justification for the exception, which is that an officer making an arrest may remove any weapon the arrestee might use to resist arrest or to escape.⁸ A phone is a physical object, and objects can hide dangerous things; the Court's own illustration is a razor blade concealed between the phone and its case.⁹ Checking the case, the seams, and the exterior for a hazard of that kind answers the safety concern directly, and it reveals nothing about the owner's private life, which is why the exception tolerates it.

The permission ends where its reason ends. Once an officer has secured the phone and eliminated any physical threat, the data on it can endanger no one, because digital data cannot itself be used as a weapon against an arresting officer or to help the arrestee escape.¹⁰ The inspection therefore has a built-in stopping point, since the question whether the object could hurt someone can be answered without reading anything on it. The officers in Riley and Wurie went past that point. Opening a call log tells an officer whom the arrestee has been calling and nothing about whether the phone is dangerous, so neither search can rest on the safety rationale that supports the inspection of the casing.

On an exam stem, the fact that decides the issue is what the officer did with the phone after taking it. Handling, opening, or examining the device as an object to find hidden hazards falls within the exception, while touching the screen to view calls, messages, photographs, or applications is a search of data. The trap in this subsection is to treat the permission to handle a phone as permission to read what is on it.

Digital Data Needs a Warrant

Riley refused to extend Robinson to data by using the balancing method courts apply whenever the question is whether a category of search should be exempt from the warrant requirement: weigh how far the search intrudes on privacy against how far it is needed to promote legitimate governmental interests.¹² That balance favored the exception in Robinson, and the Court acknowledged that a mechanical application of Robinson might well uphold the phone searches.¹³ Robinson's categorical rule rests on two premises, one on the government's side of the scale and one on the arrestee's, and the Court found that neither carries over to digital data.¹⁴ The holding is that officers must generally secure a warrant before searching the data on a phone seized from an arrestee.¹⁵

The government-side premise was that the two risks identified in Chimel, harm to officers and destruction of evidence, are present in every custodial arrest, which is why Robinson required no showing in the particular case.¹⁶ With data there are no comparable risks.¹⁷ Data cannot be swung, fired, or used to flee, and once officers have secured a phone there is no longer any risk that the arrestee could delete incriminating data from it.¹⁸ The government answered by stressing remote wiping and encryption. The Court treated those concerns as different from the one Chimel addressed, which is an arrestee who responds to arrest by trying to conceal or destroy evidence within reach. It saw little sign that either problem is prevalent or that searching the phone on the spot would be an effective cure, and it noted that law enforcement has technologies of its own against remote wiping.¹⁹ The structure of the exception explains the result: it answers what the arrestee can do with things within reach, and a signal sent over a network by someone else is outside that.

The arrestee-side premise was that whatever privacy a person retains after arrest is significantly diminished by the arrest itself.²⁰ That premise worked for pockets because physical space limits what a pocket can hold, perhaps a few photographs or a handful of letters, whereas a phone can hold millions of pages of text, thousands of pictures, or hundreds of videos.²¹ A search of that information bears little resemblance to the brief physical search in Robinson, because phones place vast quantities of personal information literally in the hands of individuals.²² The idea that looking through an arrestee's pockets adds little to the intrusion of the arrest itself may make sense for physical items, but substantially greater privacy interests are at stake when digital data is involved.²³

The Court reached this result by asking about a category of effects, which matches the way Robinson itself worked. Robinson rejected case-by-case inquiry into whether the Chimel reasons were present, and Riley does not revive that inquiry. It asks instead whether applying the search-incident doctrine to this category of effects would untether the rule from the justifications underlying Chimel.²⁴ Because the question is asked about the category, a showing about the particular arrest, such as how dangerous the arrestee seemed or how likely the phone was to hold evidence, does not bring a data search within the exception. Robinson remains good law for the physical objects found on a person, where the Court found its categorical rule strikes the right balance.²⁵

On an exam stem, a phone seized at arrest should be separated from the other items on the arrestee at the first step. The arrest supplies authority to take the phone and to check it as an object, and it supplies no authority to open the data, however minor or serious the offense of arrest.

What Officers Can Still Do

Riley leaves officers with real options once they hold an arrestee's phone, because its holding concerns searching the data and says little about taking control of the device. Officers may still seize and secure a phone to prevent the loss of evidence.²⁷ Seizing and securing keep the evidence where it is while a judge decides whether to authorize the search, so the warrant requirement costs the police time and leaves the evidence in place. The Court's discussion points to practical steps officers can take: if the worry is remote wiping or encryption, they can leave the phone powered off or in airplane mode.²⁸ They may also disable the phone's locking mechanism to secure the scene, and they may respond in a targeted way to an urgent threat that data is about to be wiped.²⁹

A second option is a case-specific exception. The Court observed that a data search might sometimes warn officers of an impending danger, for example that the arrestee's confederates are headed to the scene, and said such concerns are better handled through exceptions like exigent circumstances.³⁰ If there are truly exigent circumstances, officers may be able to search the phone without a warrant.³¹ The reason this route stays open is that exigency works on facts about the particular situation, while the search-incident exception worked by category. A general worry that any phone could be wiped does not qualify, but a concrete, urgent threat in front of the officers can.

The error to avoid is treating the power to take a phone as the power to look inside it, so that seizing the phone is mistaken for permission to search it. A stem that involves a phone can be run as a short sequence.

The fourth step does the work on most stems. Phones raise a general risk of wiping, but only facts in the stem that show an urgent, specific threat can carry the search past the warrant requirement.

Physical Inspection of the Phone

When officers take a phone from an arrestee, the exception lets them examine its physical aspects to make sure it cannot be used as a weapon.³³ The permission rests on the first of the two justifications for the exception, officer safety, which allows police to deal with a danger the arrestee might use against them while the arrest is carried out.³⁴ A phone is a physical object, and any physical object can hide something dangerous. The Court's own example is a razor blade concealed between the phone and its case.³⁵ Looking over the casing, the seams, and the exterior for a hazard of that kind answers the safety concern directly, and it requires no look at anything the owner has stored, which is why the exception tolerates it without a warrant.

The permission has a built-in stopping point. Once an officer has secured the phone and eliminated any physical threat, the data on it can endanger no one.³⁶ Whether the object could hurt someone can be settled without reading anything on it, so the safety rationale gives officers no reason to go further. The officers in Riley v. California did go further. One officer accessed information on Riley's phone and looked at a call-log entry that the officer took to refer to a street gang.³⁷ In the companion case, officers opened Wurie's flip phone, pressed buttons to reach its call log, and traced a number to an apartment.³⁸ Neither act examined the device as an object. Each read information stored on it, so neither can be defended as a safety check, and the Court held that officers must generally obtain a warrant before searching phone data.³⁹

On an exam stem, the deciding fact is what the officer did with the phone after taking it. Handling or opening the device to look for hidden hazards fits within the exception, while touching the screen to view calls, messages, photographs, or applications is a search of data. The common trap is to treat permission to handle a phone as permission to read what is on it, and the next section explains why the Court refused to make that extension.

Digital Data Needs a Warrant

The holding of Riley v. California is that officers must generally secure a warrant before searching the data on a phone taken from an arrestee.⁴¹ That answer looks odd beside the rule for the arrestee's person, because Robinson allows an officer who makes a lawful custodial arrest to search the person and the containers found on it, even when nothing suggests that weapons or evidence will turn up. In Robinson itself, an arrest for driving with a revoked license led to a search of the arrestee's pockets and a crumpled cigarette pack, although a cigarette pack could not hold evidence of that offense.⁴² The government in Riley reasoned that a phone is one more object in a pocket and that Robinson therefore covers it. The Court granted that a mechanical application of Robinson might support the phone searches, but held that its categorical rule suits physical objects and that neither of its supporting premises has much force for digital content.⁴³

Each premise needs its own account. Both rest on the balance courts strike when deciding whether a type of search should be exempt from the warrant requirement, which weighs how far the search intrudes on privacy against how far it is needed to promote legitimate governmental interests.⁴⁴ On the government's side of that scale, Robinson assumed that the two risks identified in Chimel, harm to officers and destruction of evidence, are present in every custodial arrest, which is why no showing about the particular arrest was required.⁴⁵ The question for a phone is whether those same risks exist when the thing searched is stored data, and the Court found that they do not.

Officer safety is the first Chimel risk, and data does not implicate it. Information stored on a phone cannot be used as a weapon against an officer or to help the arrestee escape, and once an officer has secured the phone and eliminated any physical threat, the data on it can endanger no one.⁴⁶ The inspection of the device as an object, covered in the previous section, already answers whatever safety concern a phone presents. A data search might occasionally warn officers of a danger, such as confederates of the arrestee heading toward the scene, but that concern depends on the facts of the particular situation, and the Court said it is better handled through case-specific exceptions such as exigent circumstances.⁴⁷ Robinson could dispense with case-by-case showings because the danger arises in every arrest, while a danger that arises only in some arrests is exactly what an exigency inquiry is built to sort out.

The evidence-preservation rationale is weaker for data, and here the government made its strongest argument. Once officers have secured a phone, there is no longer any risk that the arrestee could delete incriminating data from it.⁴⁸ The government therefore pointed to remote wiping, in which someone else sends a signal that erases the data, and to encryption that locks the data away. The Court treated those worries as distinct from the one Chimel addressed, an arrestee who responds to arrest by trying to conceal or destroy evidence within reach. It saw little sign that either problem is prevalent or that a search at the scene would cure it, and it noted that law enforcement has technologies of its own against remote wiping.⁴⁹ Simple measures such as powering the phone off or isolating it from radio signals also prevent remote wiping, so the risk can be managed without opening the phone.⁵⁰ A concrete and urgent threat that a particular phone is about to be wiped remains a matter for exigency, which the next section takes up.

On the arrestee's side of the scale, Robinson treated whatever privacy a person keeps after arrest as significantly diminished by the arrest itself.⁵¹ That premise held for pockets because physical space limits what a pocket can contain, perhaps a few photographs or a handful of letters. A phone can hold millions of pages of text, thousands of pictures, or hundreds of videos, so the possible intrusion has no comparable physical limit.⁵² A phone also gathers many kinds of information in one place, such as addresses, notes, prescriptions, and bank statements, and those items reveal far more in combination than any single record would. A thousand dated and labeled photographs can reconstruct the sum of a person's private life.⁵³ Even the call log that officers reached by pressing buttons on Wurie's flip phone received no lesser protection, because the Court rejected the idea that a call log differs little from the numbers a pen register records.⁵⁴

Because Robinson rejected case-by-case adjudication of whether weapons or evidence were likely in a particular arrest, Riley does not reopen that inquiry. It asks instead whether applying the exception to this category of effects would untether the rule from the justifications underlying Chimel, and for phone data the answer is yes.⁵⁵ A showing about the particular arrest, such as how dangerous the arrestee appeared, how serious the offense was, or how likely the phone was to hold evidence, therefore cannot bring a data search within the exception. Robinson itself stays intact for physical objects found on the person, and Riley treats that rule as categorical, declining to apply it only to the phones before the Court.⁵⁶

On an exam stem, the first move is to separate the phone from the other items taken from the arrestee, because the items travel together but the rules do not. The trap is to reason that anything found in the arrestee's pockets may be searched, so that a phone is just another pocket item. Neither the gravity of the offense nor the arrestee's apparent dangerousness changes the result, because the rule operates by category. Only a concrete, case-specific justification such as exigent circumstances can carry a warrantless data search past the warrant requirement.

What Officers Can Still Do

The warrant requirement for phone data does not strip officers of useful tools at the scene of an arrest. In Riley v. California the Court held that officers must generally obtain a warrant before searching the data on a phone, and in the same discussion it recognized that officers may still seize and secure the phone to prevent the loss of evidence, and that truly exigent circumstances may permit a search without a warrant.⁵⁸ Three options follow from that: seizing and securing the phone, taking technical steps that keep its data intact while a warrant is sought, and relying on a case-specific exception when a particular emergency arises. Each option answers a worry the government raised, and each leaves the reading of the data to a judge's approval unless the facts of the situation justify moving faster.

Seizing a phone and searching it are separate acts, and the holding in Riley reaches only the second.⁵⁹ An officer who takes the phone from the arrestee's pocket has removed it from the arrestee's control, and once the phone is secured the arrestee has no further chance to delete anything on it.⁶⁰ That removes the danger behind the second justification for the search-incident exception, the concern that an arrestee will conceal or destroy evidence within reach. What remains is the wait while officers apply for a warrant, and a secured phone keeps its contents for as long as the application takes, so the wait costs the government little. The warrant requirement then does its ordinary work: a judge decides whether probable cause supports opening the data before anyone reads it.

The government's strongest argument for searching on the spot was that even a secured phone can lose its data to remote wiping, in which someone else sends a signal that erases it, or to encryption, which locks the data away once the phone locks itself. The Court answered that officers can guard against both without opening the phone, and that law enforcement has some technologies of its own against wiping.⁶¹ Powering the phone off or removing its battery disconnects it from the network and so prevents remote wiping, while leaving a phone on and sealing it in a Faraday bag, an enclosure that isolates it from radio waves, addresses encryption.⁶² An officer who finds the phone unlocked may also be able to disable its automatic-lock feature, and the Court pointed to leaving a phone powered off or in airplane mode as further ways to meet these worries.⁶³ Which step fits depends on the risk the officers face, but every one of them protects the data by controlling the device, and none requires anyone to read what is stored on it.

A warrant is the default for data, and it can be bypassed only on case-specific facts. The Court identified such exceptions as the proper route when a particular situation presents real urgency, and its examples were an arrestee's confederates heading toward the scene and an urgent threat that a particular phone is about to be wiped remotely.⁶⁴ An exigent search is a warrantless search carried out in response to a sudden emergency, often to preserve evidence or to protect the officers.⁶⁵ This route survives because exigency is judged on the facts of the particular situation, while the search-incident exception worked by category. A general worry that phones can be wiped is shared by every arrest and so says nothing about this one, whereas a concrete and urgent threat in front of the officers can be weighed on its own facts. The two routes also interact in practice: when officers can eliminate a wiping threat by powering the phone off, the threat no longer calls for opening the phone, so exigency is most plausible where the simpler measures cannot answer the danger.

The common error on an exam stem is to treat the general possibility of wiping as if it were an emergency. Because the officer's options run from the least intrusive to the most, the analysis is best taken in that order, stopping at the first step that resolves the facts. The steps are these:

Step four does most of the work, because stems often describe a worry that sounds urgent but could have been handled by powering the phone off.