Reasonableness and Post-Riley Smartphone Searches

The below article was reproduced from The Federal Law Enforcement Informer, August 2015 issue.  The Informer is a product published by the Department of Homeland Security, Federal Law Enforcement Training Center (FLETC), Office of Chief Counsel, Legal Training Division.  The entire document, which contains case notes on notable federal cases, can be found here.

Robert Duncan, Esq.
Attorney Advisor and Senior Instructor
Office of Chief Counsel
Federal Law Enforcement Training Centers
Artesia, New Mexico
Reasonableness as Touchstone
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”1 and in so doing, “put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints [and] forever secure[d] the people, their persons, houses, papers, and effects, against all unreasonable searches and seizures under the guise of law.”2 With the remainder of the Fourth Amendment prohibiting the issuance of warrants without “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,”3 officers may view the law governing search and seizure as largely evidentiary or procedural but the “underlying command of the Fourth Amendment is always that searches and seizures be reasonable.”4
The Supreme Court has clearly defined searches and seizures. A search “occurs when
an expectation of privacy that society is prepared to consider reasonable is infringed[while] ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.”5 The Supreme Court has held that the “touchstone” of the Fourth Amendment is reasonableness6 but there is “no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable.”7
Determining Reasonableness
Determining whether a search is reasonable under the Fourth Amendment usually involves looking to “the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the [Fourth Amendment’s] framing”8 or “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”9
As neither a warrant nor probable cause is an “indispensable component of reasonableness,”10 the Supreme Court has determined that “[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing[…]reasonableness generally requires the obtaining of a judicial warrant.”11 In the absence of a warrant, “drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime,”12 a search is reasonable only if it falls within a specific exception to the warrant requirement,13 even if the warrantless search violates a person’s reasonable expectation of privacy.14
The Supreme Court recognizes “few specifically established and well-delineated exceptions”15 to the warrant requirement. Those exceptions include the plain view doctrine,16 which allows an officer to seize evidence and contraband found in plain view during a lawful observation without a warrant;17 the Terry stop and Terry frisk, which grants authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual;18 certain limited searches incident to lawful arrest;19 and searches involving exigent circumstances.20
A party alleging an unconstitutional search must establish “both a subjective and an objective expectation of privacy.”21 The Supreme Court has held “the subjective component requires that a person exhibit an actual expectation of privacy, while the objective component requires that the privacy expectation be one that society is prepared to recognize as reasonable.”22
A smartphone user’s expectation of privacy is viewed objectively and “must be justifiable under the circumstances”.23 With the advent of social media and smartphones, people “can post a photo or video from their phones, allowing them to share their lives instantly.”24 Until 2014, one could make a colorable argument that it is unreasonable to have an expectation of privacy when one records and instantly shares life events on a smartphone; if there is no violation of a person’s “reasonable expectation of privacy” by police or government agents, then there is no Fourth Amendment search.25 Despite the prevalence of sharing, users also routinely use passwords, thumbprint scans, or other mechanisms to prevent unwanted viewing of the device’s contents. Using these features demonstrates an intention to keep a device’s contents private; the remaining question is whether the privacy expectation created by using a password is one that society is prepared to recognize as reasonable.
In early 2014, the Pew Research Center conducted a study that “found more than 90 percent of Americans now own or regularly use a cellphone, and 58 percent have a more sophisticated smartphone.”26 Even though society may share some data to others, society accepts that privacy expectations are reasonable on data stored on a smartphone itself and protected by passwords. In a digital age “all of our papers and effects [are no longer] stored solely in satchels, briefcases, cabinets, and folders [but] rather…stored digitally on hard drives, flash drives, memory cards, and discs.”27 Even the Supreme Court—an institution that does not enjoy a tech-savvy reputation—has agreed that papers and effects have given way to smartphones and selfies.28
Riley v. California
The Supreme Court extended reasonable expectations of privacy to smartphone data in Riley v. California, 134 S. Ct. 2473, 2485, 189 L. Ed. 2d 430 (2014). Riley involved two separate arrests and searches of smartphones by police officers, demonstrates the inverse relationship between smartphone technology and reasonableness of smartphone searches.  Officers attempted to search a phone as part of a Terry frisk.
As to the Terry frisk exception, the Court held that “digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape,” thus significantly limiting the use of this exception for reasonable searches of smartphones.29 The Court also noted that smartphones “place vast quantities of personal information literally in the hands of individuals [and a] search of the information on a cell phone bears little resemblance to the type of brief physical search considered” in previous cases involving searches incident to lawful arrest.30
As to one of the remaining exceptions, exigent circumstances encompass a broad array of factors considered by the courts: “the gravity or violent nature of the offense with which the suspect is to be charged; a reasonable belief that the suspect is armed; probable cause to believe the suspect committed the crime; strong reason to believe the suspect is in the premises being entered; the likelihood that a delay could cause the escape of the suspect or the destruction of essential Fourth Amendment evidence; and the safety of the officers or the public jeopardized by delay.”31
The destruction of evidence factor was often cited in court cases through the mid-1990s through the late 2000s:
“On a cell phone, the telephone numbers stored in the memory can be erased as a result of incoming phone calls and the deletion of text messages could be as soon as midnight the next day…[O]nce the cell phone powers down evidence can be lost. [A popular cell phone, the Motorola Razer] has an option called message clean up that wipes away text messages between 1 and 99 days. There is no way to determine by
looking at the Razer cell phone’s screen, if the message clean-up option has been activated. If the one-day message clean up is chosen, any messages stored on the Razer cell phone will be deleted at midnight on the following day it is received.
Accordingly, this Court finds that exigent circumstances existed and the text messages retrieved from the Razer cell phones are admissible.”32
As smartphone technology has developed, however, the Supreme Court views exigent circumstances with increasing skepticism. In 2014, the technology used in the most basic of phones was unheard of ten years ago33 and “the current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos.”34
Advances in technology also mean that officers can prevent destruction of data by “disconnecting a phone from the network…First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an [Faraday] enclosure that isolates the phone from radio waves.”35 With these precautions in place, “there is no longer any risk that the arrestee himself will be able to delete incriminating data from the phone.”36
Seek Warrant, Avoid Suppression of Evidence
With the Supreme Court’s holding in Riley, trial courts will likely suppress smartphone evidence without a search warrant or factual information that an exception to the warrant requirement existed at the time of the search. Fortunately, officers can find model search warrant templates at the nearest Regional Computer Forensics Laboratories (RCFL) site and seek assistance from the Federal Bureau of Investigation (FBI). While other avenues exist for cell phone investigations, the RCFL and FBI are especially good resources because almost every FBI Field Office or Resident Agency has a Cell Phone Investigative Kiosk (CPIK) available for use.
According to the FBI, the CPIK “allow users to extract data from a cell phone, put it into a report, and burn the report to a CD or DVD in as little as 30 minutes.”37 Full-size kiosks are physically located in nearly all FBI Field Offices and RCFLs; portable kiosks are available at many FBI Resident Agencies. Drafting a search warrant and using the CPIK may help ensure that valuable information obtained from a smartphone may be admissible and help win convictions in a criminal case post-Riley.
2. Mapp v. Ohio, 367 U.S. 643, 647, 81 S. Ct. 1684, 1687, 6 L. Ed. 2d 1081 (1961) citing Weeks v. United States, 232 U.S. 383, 391, 34 S. Ct. 341, 344, 58 L. Ed. 652 (1914).
4. New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720 (1985).
5. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656, 80 L. Ed. 2d 85 (1984).
6. See United States v. Knights, 534 U.S. 112, 112-13, 122 S. Ct. 587, 588, 151 L. Ed. 2d 497 (2001).
7. O’Connor v. Ortega, 480 U.S. 709, 715, 107 S. Ct. 1492, 1496, 94 L. Ed. 2d 714 (1987).
8. California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 1549-50, 113 L.Ed.2d 690 (1991); See e.g. United States v. Watson, 423 U.S. 411, 418-420, 96 S.Ct. 820, 825-26, 46 L.Ed.2d 598 (1976); Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283-84, 69 L.Ed. 543 (1925).
9. Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 1300, 143 L. Ed. 2d 408 (1999).
10. Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S. Ct. 1384, 1390, 103 L. Ed. 2d 685
11. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995).
12. Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
13. See Kentucky v. King, 563 U.S. ––––, ––––, 131 S.Ct. 1849, 1856–1857, 179 L.Ed.2d 865 (2011).
14. See Illinois v. Rodriguez, 497 U.S. 177, 185, 110 S. Ct. 2793, 2799, 111 L. Ed. 2d 148 (1990).
15. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967).
16. Smartphones usually have an automatic lock or passcode which prevents casual observation by law enforcement officers, making this exception of limited use in the field.
17. See Horton v. California, 496 U.S. 128, 128, 110 S. Ct. 2301, 2303, 110 L. Ed. 2d 112 (1990).
18. See Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968).
19. See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); see also Chimel v. California, 395 U.S. 752, 755, 89 S. Ct. 2034, 2036, 23 L. Ed. 2d 685 (1969).
20. See Payton v. New York, 445 U.S. 573, 619, 100 S. Ct. 1371, 1397, 63 L. Ed. 2d 639 (1980).
21. United States v. Robinson, 62 F.3d 1325, 1328 (11th Cir.1995) citing United States v. Segura-Baltazar, 448 F.3d 1281, 1286 (11th Cir. 2006).
22. Id.
23. Smith v. Maryland, 442 U.S. 735, 740–41, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
24. Marc Ransford, Study: College students not embracing tablets as originally predicted, (last accessed June 26, 2015.)
25. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S. Ct. 3319, 3324, 77 L. Ed. 2d 1003 (1983).
26. Bill Mears, Supreme Court: Police need warrant to search cell phones, (last accessed June 26, 2015.)
27. Bryan Andrew Stillwagon, Bringing an End to Warrantless Cell Phone Searches, 42 Ga. L. Rev. 1165, 1194
28. See Farhad Manjoo The Tech-Savvy Supreme Court, (last accessed June 26, 2015).
29. Riley, at 2485. 30 Id. 31 See LEGAL DIVISION HANDBOOK 367 (Fed. Law Enforcement Training Ctr. Ed. 2015).
32. See United States v. Young, No. CRIM.A. 505CR6301, 2006 WL 1302667, at *13 (N.D.W. Va. May 9, 2006).
33. See Riley at 2484.
34. Id., at 2489.
35. Id., at 2487.
36. Id., at 2486.
37. See Regional Computer Forensics Laboratory, Cell Phone Kiosk Brochure, (last accessed June 26, 2015).

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