Cell Phone Ruling Is No Threat to Effective Policing


Fourth Amendment cases give us great past-vs.-present riddles, little Zen koans testing our constitutional intuitions about technology. How is an email message like a paper-and-envelope letter? How is a computer hard drive like a file cabinet? How is a thermal-imaging scope like a pair of binoculars? How is a cell-phone tower like a human phone-company operator?

And now: how is a cell phone like a pack of cigarettes?

We have to play these analogy games because, as The Crime Report readers know, the Fourth Amendment prohibits “unreasonable” searches and seizures, and what's reasonable has to be continually reassessed in light of evolving technologies and tactics on both sides of the cops-and-robbers game.

Although Jay-Z was mistaken in saying it of his locked car trunk, “You gon' need a warrant for that” is a good phrase to remember, because it is the core constitutional constraint on police power. If the police are going to do a search, they need to ask a judge to sign a warrant, unless an exception applies.

Much of the action in Fourth Amendment law is about those exceptions—circumstances in which the Court has said that warrants are categorically not required.

One of those is “searches incident to arrest.” That means: if you're arrested, your person, clothes, and belongings can be searched, no warrant necessary. The obvious rationale is officer safety (preservation of evidence is the other one). But it's the rule, not the rationale, that governs: you don't examine every single search incident to arrest to see if it was necessary for officer safety. You just ask if the search was incident to the arrest. If so, it's a good search.

But every so often, the rule gets stretched to its breaking point, and that's what just happened with cell phones. The seminal modern articulation of the search incident-to-arrest rule was a case called United States v Robinson, which involved a pack of cigarettes in an arrestee's pocket. You can search the person and his belongings, so you can open the pack of cigarettes and find the drugs, and charge the guy. Easy, right?

So here's our analogy game. A phone is about the size of a cigarette pack, and it's typically found in a pocket; so if you arrest someone with a phone, then you can take the phone and look in it for evidence, right?

Like every other prosecutor in America, I regularly advised agents to do so at the time of the arrest, because there was a clear constitutional rule that said you can. (They had to be quick about it, though; if they waited too long (if we broke up the “flow of events” from the arrest, say the cases) the search was no longer “incident to arrest,” and we'd have to go get a warrant.)

Now, can you see where the analogy falls apart? I think it's the word “in.” Is “looking in” a smartphone analogous to looking “in” a baggie or a cigarette pack or a wallet? Make your list of “likes” and “unlikes” here, and I think you'll agree that it's not the same thing at all.

And now the Supreme Court has announced, unanimously, that it agrees: the incident-to-arrest exception does not cover phone searches. In its June 25th ruling on Riley v California, the Court held that the justifications for incident-to-arrest searches could not meaningfully apply to all the data contained on a phone, and the type of information readily available through a search of the phone would render moot many other privacy interests and search limitations.

Take data stored in the cloud: a cop swiping through your phone doesn't know whether the files he's looking at are being accessed remotely; he just sees them on the screen. Allowing such searches would be like, in Chief Justice John Roberts' memorable phrase, “finding a key in a suspect's pocket and arguing that it allowed law enforcement to unlock and search a house.”

So could law enforcement agencies “develop protocols” to limit cloud searches, as the government argued? No: “the Founders did not fight a revolution to gain the right to government agency protocols.”

But you don't need me to tell you that this decision is right on the money, and was long overdue. Just about everyone who spends time thinking about the Fourth Amendment will tell you the same thing.

I'm offering you something else. First, I'm going to give you some responses to any cocktail-party interlocutors who want to score points by saying that Riley is going to “hamstring law enforcement.” Second, I'm going to explain (in tomorrow's column) why the much bigger problem now is getting cases like this to the Court in the first place.

So first: No tears for the cops here.

A law-enforcement model that's built on stumbling upon evidence in suspicionless searches is nothing to be proud of. I saw a quote in The New York Times from Yousry Zakhary, Chief of Police of Woodway, Texas, a tiny (population 8,861) suburb of Waco. Zakhary didn't like Riley much. He said, “I wish it was just as simple as 'get a warrant.' It takes time—and key evidence could be lost.”

Let's think about this comment for a moment. I see three things he could mean:

(1) “Getting a warrant is not that simple”

(2) “We could get a warrant, but while we're doing that, key evidence could be lost;” or

(3) “There will be cases where we cannot get a warrant, and then key evidence could be lost.”

So, if you're having a cocktail-party conversation and someone says something like this, press him on it. Because all three claims are absurd.

First, getting a warrant is simple. All you have to do is tell a judge why you want to do the search. And, as I've pointed out here before, you're allowed to use generic “training-and-experience” boilerplate that is, to put it politely, pretty broad.

For example, you want to search Riley's phone? You say this:

“Riley was in possession of two loaded handguns. He had a red bandana in his pocket. He had a teardrop tattoo under his right eye. His rap sheet indicates multiple arrests, and his name appears on a list of known or suspected gang members. I therefore have probable cause to believe that he is a member of the Bloods.

I have been a police officer for five years and have spent the past two years on the Gang Task Force. I have attended a 20-hour Gang Enforcement Training Program conducted by the FBI and the DEA. Based on my training and experience, I know that gang members regularly store information about their contacts and activities on their phones, and that this information regularly includes photographs of themselves at crimes scenes, with weapons, or with co-perpetrators. It also includes phone records and text messages that often include coded or uncoded references to gang activities.

I therefore have probable cause to believe that Mr. Riley's phone contains evidence or instrumentalities of criminal activity, specifically illegal gun possession, conspiracy to distribute narcotics, and conspiracy to commit robbery.”

And then you've got your warrant. I've written many of these, and you don't even have to write them up fresh each time; you use existing boilerplate and fill in the details for your case. Probable cause is a low threshold. So there's no danger that Riley would have gotten away if there'd been a warrant requirement.

Next, isn't your case going to go cold while you're waiting for the pigeon to fly back from Washington DC with your warrant? Nope. There are magistrates on duty 24 hours a day in every jurisdiction in the country, and you can get warrants by phone if you can't get in there in person. Getting warrants is just a normal part of the job of every police and prosecution agency in the country; everyone knows how to do it.

And no, you're not going to lose evidence while you wait, because the Fourth Amendment allows police to secure evidence and locations while they're waiting for their warrant.

The Riley decision even addressed the (apparently almost wholly hypothetical) worry that co-conspirators might “remotely wipe” a phone's memory while the police sit about helplessly, waiting for their warrant. Put the phone in a radio-wave reflective container, said the Court. Like those little pouches advertised in SkyMall.

So we get to option #3, which is probably what Zakhary really means, but doesn't quite want to say publicly: he's worried about losing “get-lucky busts,” where officers do searches with no evidentiary basis, and happen to get lucky and find something. And here, it's true: if you have to have a reason for searching a phone, then you don't get to search the phone when you don't have a reason to do it.

But isn't that a good thing?

Get-lucky busts are one of the dirty little secrets of law enforcement. There's tremendous incentive, and hence pressure, to take advantage of opportunities to do suspicion-less searches. Just get in there and search whenever and wherever you can, and maybe you'll get lucky. So you take full advantage of the situations in which you get to search people (or cars) “just 'cuz”— with no basis whatsoever for believing you'll find anything.

Incident-to-arrest searches are a treasure trove of get-lucky busts. In fact, that's one of the explicit selling points for William Bratton's famous “broken windows” policing strategy. Arrest people for little stuff, and you'll get lucky and get some real bad guys too. That guy jaywalking or urinating in the alley might have a gun in his belt or drugs in his pocket. The trove of potential get-lucky evidence expands basically infinitely if you get to search the phone of everyone you arrest.

So the police are going to do it, as long as their bonuses and promotions are tied to their arrests.

And as I've also written about here previously, there is no Fourth Amendment bar to arresting people for minor offenses, like jaywalking, or (in the famous case) not wearing your seatbelt— even if the violation carries no jail time and the maximum penalty is just a fine. And there is no Fourth Amendment bar to “pretext arrests”—using minor (e.g. traffic) offenses to arrest and search people you are really pursuing for something else.

The reason Riley was unanimous, in my opinion, is that the justices knew they had painted themselves into a corner.

If you let the police make arrests for any traffic offense, and you let them do pretext arrests, and you let them search anyone they arrest, and you say that the phone is like a bag which can be fully searched on arrest, that's just too much for anyone's interpretation of the Fourth Amendment to bear.

So say this to your cocktail-party interlocutor: Do you think the police should be able to do searches where they have no reason to believe they'll find any evidence of crime? He (it'll be a he) will probably say something about officer safety. You'll reassure him that the Riley decision expressly allows police to examine phones for any physical dangers (e.g., a razor blade hidden in the case).

“Other than that?” you'll say. “Because if they have a reason to think there's evidence in the phone, they can get a warrant. So what's the problem?”

Enough whining about how hard it is to get warrants.

I'll say again what I find myself saying a lot here: I'm a law-and-order guy, and I'm telling you it's just absurd to say that requiring police to get a warrant before they can search your phone is going to hamstring law enforcement.

If you're making your cases based on get-lucky searches with no probable cause, then you're doing lazy prosecuting that's not making anyone safer.

EDITORS NOTE: In Part 2 of this Viewpoint, which will appear tomorrow, Caleb Mason examines the impact of a little-known 2011 Supreme Court ruling, Davis v United States, and explains how the Court is making Fourth Amendment cases like Riley much harder to raise in the first place.

Caleb Mason is an attorney at Miller Barondess LLP in Los Angeles, and a former federal prosecutor. He welcomes comments from readers

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