David Riley was already in deep trouble when the San Diego Police Department got hold of his Samsung smartphone in August 2009. Riley had been driving around the neighborhood in a Lexus with expired tags, and when he was pulled over police discovered that his license had been suspended. They searched his car and found guns hidden under the hood. Riley was arrested for carrying concealed and loaded weapons.
But it was the smartphone that sank him. At the arrest site, police scrolled through Riley’s text messages and contacts, finding what they considered to be indications that Riley was a member of the Bloods gang. Hours later, when he was under interrogation at the police station, a gang expert conducted a second search of Riley’s phone. He found photos and videos that, according to police, tied Riley to a gang-related drive-by shooting. Despite defense arguments that the smartphone seizure violated Fourth Amendment strictures on warrantless searches, prosecutors later used a photo and videos taken from Riley’s phone at his trial, which ended with his conviction for shooting at an occupied vehicle and two other charges. And because the smartphone supposedly linked Riley to gang activity, he was subject to an enhanced sentence. Instead of a maximum of seven years, he was sentenced to a prison term of 15 years to life.
The California Supreme Court declined to hear Riley’s Fourth Amendment appeal earlier this year, presumably because the state high court had already determined, in a 2011 case called Diaz v. California, that police may conduct warrantless searches of cellphones when the phones are seized from a person under arrest. On July 30, Riley’s lawyers at Stanford’s Supreme Court Litigation Clinic and Goldstein & Russell petitioned the U.S. Supreme Court to take his case. “This is the leading privacy issue, the next big technology and Fourth Amendment issue everyone is watching,” said Riley’s lead appellate counsel, Jeffrey Fisher of Stanford. “Now it has come to a crescendo.”
The question of whether police can search cellphones they seize during arrests is, in fact, so hot that Riley’s certiorari petition isn’t the only one raising the issue at the Supreme Court. Two weeks after Riley’s filing, the Justice Department asked the high court to review Wurie v. U.S., a 2013 decision by the 1st Circuit Court of Appeals that squarely conflicts not only with the 2011 California Supreme Court decision that doomed Riley but also with rulings by two other state Supreme Courts and three federal circuit courts. Both the Justice Department and Riley petitions argue that the high court must step in to reconcile contrary rulings that have left police departments and prosecutors without clear guidance on defendants’ Fourth Amendment rights to shield their phones from warrantless searches. It seems inevitable that the Supreme Court will eventually have to decide the question, but first the justices will have to figure out whether Riley’s case or the Justice Department’s (or both) is the best vehicle to clarify the law.
The defendant in the Justice Department case, Brima Wurie, was arrested back in 2007, before smartphones became commonplace. Police seized Wurie’s more basic flip-style cellphone after arresting him for selling two bags of crack cocaine. From a limited search of the phone, the government was able to figure out Wurie’s home address (he had given them a false address) and to obtain a warrant to search the house. That search turned up the drug stash at the heart of Wurie’s conviction in federal court in Boston.