Cell Phone Privacy: Riley v. California and United States v. Wurie

By: Catherine Martinez

In an age where the Internet reigns supreme and technology is developing at an almost alarming rate, it is not surprising to see that the law isn’t always as quick to catch up. As more and more advancements are made, our ability to communicate and share will only increase. With the arrival of smartphones, which now function basically as handheld computers, our ability to access, share, and transmit information is easier than ever. But while many of us stick to sharing pictures of cats and using texting to arrange meetings for coffee, others exploit the technology for more nefarious purposes. When buzzwords like “Snowden” and “NSA” are on everyone’s minds, the dialogue over cell phone privacy is becoming more and more complex. To what extent are our activities on our cell phones private, and what are the laws dictating how the government can access our information? When nine out of every ten American adults own a cell phone, these questions concern everyone.[1] The Supreme Court recently heard two cases, Riley v. California and United States v. Wurie, that will set important precedents on these very questions.

I. The Fourth Amendment

The Fourth Amendment of the United States constitution is “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 or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”[2] And since 1914, due to Weeks v. United States,[3] it has been held that evidence seized in violation of the Fourth Amendment is generally inadmissible.[4]

But while the Fourth Amendment protects against unreasonable search and seizure, many court cases over the decades have established that it’s not all black and white. And as we’ve developed new technology, it’s important for the justice system to develop how that technology fits into our current framework for what constitutes a constitutional search and seizure. One of the key cases for establishing the limits of the Fourth Amendment in this realm is Chimel v. California.[5]

II. Chimel

Chimel is important due to its implications regarding what can be seized after a lawful arrest. Officers had gone to the petitioner’s residence with a warrant for his arrest, but not for a search. Upon arresting him, they then searched his residence, finding a number of items later used to support Chimel’s conviction of burglary.[6] Chimel challenged the conviction, and the Supreme Court held that the warrantless search of his residence was not constitutionally justified. The Court held that an officer could search the arrestee’s person to find weapons and evidence in order to prevent their destruction or concealment, and that the arresting officer would could search the area “within [the arrestee’s] immediate control.”[7]

The case established the idea of searches incident to a lawful arrest. This is relevant as it established that cellphones on an arrestee’s person, perhaps with evidence of a crime or other wrongdoing, could possibly be seized upon arrest. In fact, state officials have argued in cases that a cellphone is no different from a wallet or anything else an individual might have in their possession while being arrested, and that it is therefore subject to searches incident to lawful arrest.[8]

But a cellphone, in function, is different from a wallet or other items a person might have while arrested. For example, the precedent set in Chimel can be used so as to protect an arresting officer who suspects the arrestee might have a knife in their pocket, or to seize drugs that the arrestee might otherwise try to destroy and conceal. In both of these scenarios, the evidence being seized is a physical object, and in the case of a cellphone, the same is true. However, where the cellphone departs from evidence like a knife or drugs is that the cellphone is not just its physical form, but also its contents. This was further established by People v. Diaz[9] in the Supreme Court of California.

III. People v. Diaz

In Diaz, the defendant, Gregory Diaz, was arrested after participating in the sale of ecstasy with a police informant. Upon arrest, his phone was seized from his pocket and searched without a warrant. Text messages were found implicating Diaz in the transaction.[10] He was charged with selling a controlled substance, after which he moved to suppress the evidence found on his phone. The motion was denied.[11] Diaz’s conviction was appealed and the state Supreme Court upheld the ruling, establishing that if the subject is under arrest, such a search is legitimate.[12] Diaz thus established that, even without a warrant, police can seize and search a person’s phone if it is associated with his or her person at the time of arrest.[13]

Whether or not the contents of a cell phone seized incident to an arrest can be used as evidence at trial was the question considered by the Court in Riley and Wurie, referenced above.

IV. Riley v. California

The first case, Riley v. California, is concerned with smartphones, devices that the Pew Research Internet Project notes that 58% of American adults own.[14] In August 2009, David Riley was pulled over in San Diego, California for driving with an expired license plate. Officers found firearms in his car. Riley was arrested and his cellphone was seized.[15] Police later went through his phone, and evidence, such as pictures and videos, was then used at Riley’s trial by prosecutors in order to connect Riley to a gang shooting unrelated to the initial stop of Riley’s car. Evidence from Riley’s phone, such as call records, indicated that Riley’s phone had been used near the scene of and at the time of the shooting. Riley was charged with shooting at an occupied vehicle, attempted murder, assault with an automatic weapon, and other gang-related crimes and was convicted.[16]

During the trial, Riley moved to suppress the evidence obtained from his cell phone, arguing that it violated his Fourth Amendment rights. This was rejected at the trial. Upon appeal, the court held that the search was constitutionally justifiable as a search incident to arrest, relying on both Chimel and Diaz.[17] The Supreme Court is now to review and rule on the issue of “whether evidence admitted at trial was obtained in a search of [his] cellphone that violated [his] Fourth Amendment rights.”[18]

V. United States v. Wurie

The second case heard by the Court was that of Brima Wurie, and involves the use of a flip-style phone, as opposed to a smartphone. Wurie was arrested in 2007 for selling crack cocaine, and his phone, seized during the arrest, was searched. The call logs were then used to find Wurie’s actual residence, after he lied to police about where he lived. Upon searching Wurie’s residence with a search warrant, the police discovered drugs, a weapon, and ammunition.[19] During his trial, Wurie moved to suppress the evidence obtained from his phone. His motion was denied on the basis that it was a search incident to his arrest. Upon appeal, the First Circuit reversed the ruling of the lower court, saying the evidence should in fact have been suppressed. The government then petitioned the Court for certiorari.[20]

VI. What Does This Mean?

The Supreme Court held hearings on both cases on April 29th, 2014. Both cases will have broad and important implications for the future of cellphone privacy within the United States. The rule established by Chimel that an individual under arrest can be searched in order to prevent the destruction or concealment of evidence is even more important as technology has advanced. With today’s smartphones, the chances of evidence in the cell phone being destroyed or otherwise hidden has increased, as phones can be wiped remotely or data can be hidden or blocked. If law enforcement has to wait to get a search warrant before searching the phone, the chances of losing key evidence are higher.

But those increases in technology also mean that more and more information is stored on people’s cell phones. A smartphone can hold emails, Facebook information, call logs, contacts, location information, bank or credit card records, photos, videos, and more, all in one location. If law enforcement are allowed to go on a fishing expedition through an individual’s phone, the amount of information they can gain is enormous. Privacy advocates argue that previous rulings on searches incident to arrest dealt with possessions, like footlockers or cigarette packages, which are not the same as cell phones due to the amount of evidence a cell phone could potentially contain.[21]

Furthermore, the evidence obtained through a search of a cell phone brings up concerns of an individual subsequently being investigated, charged, and convicted of crimes completely unrelated to the initial arrest. The possibility for this sort of overreach by law enforcement officials is an uncomfortable prospect.

Of further interest is the fact that the Supreme Court is hearing Riley and Wurie back to back, as the cases involve two different types of cell phones: smart phones and older flip-style phones. The difference in technology between the two, indicating both the amount of information each can hold as well as the capability for that information to be erased, might play into how the Court treats both cases.[22]

Ultimately, both cases demonstrate the gap between technology and the law. We can see that it’s difficult to establish the limits of law enforcement investigation with regards to technology preemptively, as it can be hard to foresee the kinds of challenges new technology will pose to criminal investigation. The technology behind devices like smartphones advances first, and then the law is forced to catch up when such devices are used in criminal endeavors and evidence gained from them is then used at trial. Riley and Wurie are not the first cases to be heard involving cell phone privacy, and they won’t be the last. The day of their eventual decision, however, will be a landmark day that for determining exactly how many rights we have with regards to our cellphones.

  1. Mobile Technology Fact Sheet, Pew Research Internet Project (last visited Apr. 27, 2014), online at http://www.pewinternet.org/fact-sheets/mobile-technology-fact-sheet/.  ↩

  2. U.S. Const. amend. IV.  ↩

  3. 232 U.S. 383 (1914).  ↩

  4. Id. at 398.  ↩

  5. 395 U.S. 752 (1969).  ↩

  6. Id. at 754–55.  ↩

  7. Id. at 763  ↩

  8. Bill Mears, Supreme Court to Look at Privacy Cases Involving Police Searches of Cell Phones, CNN (Apr. 27, 2014), online at http://cnn.it/RdLljY.  ↩

  9. 51 Cal.4th 84 (2011)  ↩

  10. Raul Hernandez, State’s High Court Rules Police Can Conduct Warrantless Cell Phone Search, Ventura County Star (Jan. 4, 2011), online at http://www.vcstar.com/news/2011/jan/04/states-high-court-rules-police-can-conduct-cell/.  ↩

  11. Diaz, 51 Cal.4th at 89.  ↩

  12. Id. at 93.  ↩

  13. David Gold, People v. Diaz, NYU Priv. Res. Group (last visited, Apr. 27, 2014), online at http://blogs.law.nyu.edu/privacyresearchgroup/2013/04/people-v-diaz/.  ↩

  14. Mobile Technology Fact Sheet, Pew Research Internet Project (cited in note 1).  ↩

  15. Amicus Brief in Riley v. California, NYU Brennan Center for Justice (Mar. 11, 2014), online at http://www.brennancenter.org/legal-work/riley-v-california-amicus-brief.  ↩

  16. Lyle Denniston, Argument Preview: Police and Cellphone Privacy, SCOTUSBlog (Apr. 25, 2014), online at http://www.scotusblog.com/2014/04/argument-preview-police-and-cellphone-privacy/.  ↩

  17. Riley v. California: Concerning the Constitutionality of a Warrantless Cell Phone Search Incident to Arrest, Electronic Priv. Info. Ctr. (last visited Apr. 27, 2014), online at http://epic.org/amicus/cell-phone/riley/.  ↩

  18. 571 U.S. at 481.  ↩

  19. Bill Mears, Supreme Court to Look at Privacy Cases Involving Police Searches of Cell Phones (cited in note 8).  ↩

  20. See generally Brent Nesbitt, US v. Wurie: The Uncertain Future of Warrantless Cell Phone Searches, Jurist (Mar. 23, 2014), online at http://jurist.org/dateline/2014/03/brent-nesbitt-wurie-phone.php.  ↩

  21. Bill Mears, Supreme Court to Look at Privacy Cases Involving Police Searches of Cell Phones (cited in note 8).  ↩

  22. Lyle Denniston, Argument Preview: Police and Cellphone Privacy (cited in note 16).  ↩