The Riley court established a rare bright-line rule under the Fourth Amendment when it declared that data searches of cell phones - regardless of type - are unlawful incident to arrest. This article analyzes Riley and provides guidance to practitioners and judges about how to deal with motions to exclude evidence collected before and after the high court ruling.

Until late June of this year, many law enforcement officers believed they were permitted to search a suspect's cell phone incident to arrest; they believed they could examine the call history, review the internet searches, and scroll through the text messages. This was, at least in part, a reasonable belief. Indeed, the Illinois Supreme Court had recently concluded in People v. Cregan that "personal items such as cigarette packs found in pockets, wallets, or purses may be searched incident to arrest not because they are by their very nature particularly personal to the individual, but because they are in such close proximity to the individual at the time of his arrest."¹

Although Cregan may have provided law enforcement with the requisite reasonable belief that it could search cell-phone data, one question remained unresolved for legal practitioners: Does that broad reading of the Fourth Amendment apply to data on a cell phone? The answer was unclear until the end of this term when it was answered by the United States Supreme Court, after granting writ of certiorari in sister cases involving searches of cell phones incident to arrest - Riley v. California and United States v. Wurie. In the words of Chief Justice Roberts, writing for a unanimous Court in a consolidated disposition, the "answer to the question of what police must do before searching a cell phone seized incident to arrest is...simple - get a warrant."²

This article discusses Riley and suggests how practitioners can more adequately handle cases involving cell-phone searches incident to arrest, turning first to the underlying facts of Riley and Wurie.

Riley v. California and United States v. Wurie

Riley. In Riley v. California, the defendant was arrested on weapons charges.³ Incident to his arrest, the police seized his cell phone - a "smart phone" - from his pant pocket. The police noticed information on the cell phone that implicated him in street gang activity. Two hours later, a specialist examined the contents of the cell phone and found evidence connecting the defendant to a shooting that had occurred several weeks earlier. That evidence was later used to enhance the defendant's sentence.

The defendant appealed and the appellate court affirmed. Relying on the California Supreme Court's decision in People v. Diaz,⁴ which held that the Fourth Amendment permitted warrantless searches of cell-phone data incident to arrest if the phone was immediately associated with the arrestee's person, the appellate court affirmed. The California Supreme Court denied the defendant's petition for review.

Wurie. In United States v. Wurie, the defendant was arrested after the police observed him participate in a drug transaction.⁵ At the police station, the police seized the defendant's cell phone - a "flip phone" - from his person and noticed that the phone was receiving calls from "my house."⁶ The police accessed the call log to find the number associated with "my house" and traced the number to the defendant's apartment.

On this information, the police secured a warrant for the apartment, where the police later found drugs. The defendant was convicted on that evidence.

A divided panel of the first circuit federal appellate court reversed the defendant's conviction.⁷ The first circuit held that cell phones were distinct from other physical possessions that may be searched incident to arrest because they can contain a considerable amount of personal data and posed a negligible threat to law enforcement.

The Supreme Court's directive: get a warrant

After considering Riley and Wurie together, the Supreme Court issued a single opinion. Recognizing that its decision would have an impact on the ability of law enforcement to combat crime,⁸ the Court nevertheless concluded as follow: "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is...simple - get a warrant."⁹ In so concluding, the Court cited University of Illinois College of Law Professor Emeritus Wayne LaFave to caution against the accepted proposition that the exceptions to the warrant requirement had swallowed the rule.¹⁰

As part of its disposition, the Supreme Court distinguished its previous decisions in Chimel v. California (where officer safety and preservation of evidence permitted police only to search the arrestee's person and the area within his immediate control),¹¹ United States v. Robinson (where the rule from Chimel permitted police to search the contents of a cigarette pack),¹² and Arizona v. Gant (where the Court extended Chimel to vehicles but only in limited factual circumstances).¹³

The Court explained that cell phones are unique in that they are: (1) based on a technology that was "nearly inconceivable" when Chimel and Robinson were decided; and (2) distinct from the unique vehicle context in Gant.¹⁴ Equating searching the contents of a cell phone with finding a key in a suspect's pocket and searching a suspect's home with that key, the Court explained that allowing law enforcement access to cell phone data as part of a search incident to arrest - which could include thousands of texts, photographs, videos, and records of calls - was a constitutional bridge too far.¹⁵

The practical effect

So, where does the holding in Riley leave us? Consider the following hypothetical.

A trooper with the Illinois State Police arrests a suspect for driving under the influence. As part of the pat-down contemporaneous to the suspect's arrest, the trooper finds and seizes the suspect's "smart" phone.

Back at headquarters, the trooper searches the contents of the suspect's phone and finds a series of text messages that link the suspect to a recent burglary. The suspect is later charged with driving under the influence, but also conspiracy to distribute cocaine and burglary in two separate cases.

On the heels of Riley, the trial court would almost certainly be faced with a motion in limine to exclude the evidence of the text messages in the burglary case. The trial court would have to grant the motion and exclude the "fruit" of that poisonous search.

Where, then, does that leave the practitioner?

Recommendations for prosecutors

For prosecutors, Riley is straightforward: no warrant, no evidence. Accordingly, prosecutors should be informing law enforcement that it needs to ask for consent to search the data on cell phones or, if it has probable cause to believe a crime has been committed, seek a warrant. Make sure that law enforcement knows that such probable cause, standing alone, is not enough; the seizure of the phone renders virtually any exigency a nullity.

What about those searches that were conducted prior to Riley? For those, the state's best argument is that law enforcement was acting in "good faith" at the time it searched the data on the phone.¹⁶ Specifically, prosecutor's should point to the Illinois Supreme Court's statement in Cregan that "personal items such as cigarette packs found in pockets, wallets, or purses may be searched incident to arrest not because they are by their very nature particularly personal to the individual, but because they are in such close proximity to the individual at the time of his arrest."¹⁷

The primary purpose of the exclusionary rule is to deter police misconduct. If law enforcement was acting under color of law at the time, what misconduct would the trial court be deterring?

Recommendations for the defense

For defense attorneys, Riley is equally clear: no warrant, no evidence. However, Riley is also explicitly narrow. Although Riley prohibits data searches of cell phones incident to arrest, the Supreme Court went out of its way to explain that all the other warrant exceptions apply, including the "exigent-circumstances" exception.

Those exigencies may include, for example, "the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or threatened with imminent harm."¹⁸ Be prepared. Exigencies exist, and prosecutors will argue them.

Conclusion

Occasionally, the Supreme Court issues an opinion that almost every practitioner can appreciate and understand. Riley is one of them. We have cell phones and our clients have cell phones. As such, we understand the private nature of these devices, which are necessary to modern life and the contemporary practice of law.

Chief Justice Roberts perhaps said it best: "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."¹⁹

David J. Robinson <drobinson@ilsaap.org> is the fourth district deputy director at the Illinois State's Attorneys Appellate Prosecutor.

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1. People v. Cregan, 2014 IL 113600, ¶50 (emphasis added).
2. Riley v. California, 134 S. Ct. 2473 (2014), slip opinion available at, http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf.
3. Id.
4. People v. Diaz, 51 Cal. 4th 84, 93 (2011).
5. United States v. Wurie, 728 F.3d 1 (2013).
6. Id.
7. Id.
8. Riley, 134 S. Ct. 2473 ("We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime …. Privacy comes at a cost.").
9. Id.
10. Id. ("warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant").
11. Chimel v. California, 395 U.S. 752, 762-63 (1969).
12. United States v. Robinson, 414 U.S. 218, 220 (1973).
13. Arizona v. Gant, 556 U.S. 332, 338 (2009).
14. Riley, 134 S. Ct. 2473.
15. Id.
16. See United States v. Leon, 468 U.S. 897 (1984) (explaining the "good faith" exception in the context of warrants).
17. People v. Cregan, 2014 IL 113600, ¶ 50 (emphasis added).
18. Riley, 134 S. Ct. 2473.
19. Id. (citation omitted).