Civil and Human Rights

Should cops be able to peek at your phone?

By Kristina Davis


If you’re arrested, does that give police officers the right to look through your cellphone? If you’re in California, you bet. But not so in Ohio or Florida.


The laws surrounding warrantless cellphone searches by police are far from clear-cut in our fast-evolving digital age. The issue has divided high courts across the nation, doing little to resolve the conflict that continues to grow as we carry more and more personal information in our smartphones.


Now, lawyers in a San Diego gang case are trying to get the legal question answered by the U.S. Supreme Court.


In a petition to the nation’s high court filed July 30, the attorneys argue that David Leon Riley’s Fourth Amendment protection from illegal search and seizure was violated when San Diego officers searched through his cellphone after his arrest on Aug. 22, 2009.


Stanford Law School professor Jeffrey Fisher, one of the country’s leading Supreme Court litigators, has taken on the case, and the issue’s far-reaching implications make it closely watched among defense lawyers, law enforcement, and privacy advocates.


Supreme Court justices could begin reading briefs on the case as early as this week to decide if they will hear it this term. If so, oral arguments would be set for spring.


“Smartphones are now the central repository for private information in our personal lives,” said Fisher, who is working the case with students at Stanford’s Supreme Court Litigation Clinic. “The degree of privacy we have over that vast store of information — everything from private personal conversations, photos, videos to work emails and confidential financial documents — is a critical question for the populous.”


And Fisher argues that Riley’s case is the perfect vehicle for the issue to be decided on.


Arrested and searched


Riley, 22, was driving his Lexus when an officer pulled him over for having expired tags. The officer soon found out that Riley was also driving on a suspended license. The officer searched the car before impounding it and uncovered two guns hidden in the engine compartment.


Riley was arrested, and his Samsung smartphone was seized. The officer scrolled through Riley’s text messages, which showed signs of gang activity, according to the legal brief. Hours later, a gang detective searched through videos and photos on the phone.


What he found — a photo of a red Oldsmobile — led the detective to suspect Riley was involved in a shooting three weeks earlier in the Skyline neighborhood. In that crime, three men had reportedly fired several rounds at a passing car, causing it to crash, then fled in a red Oldsmobile.


Other evidence, including ballistics on the two guns seized, led to charges of attempted murder, shooting at an occupied vehicle and assault with a semi-automatic firearm. Pictures and video on Riley’s cellphone were used to help prove that he was in a street gang, his lawyer said.


The first trial ended in a hung jury, but a second jury found him guilty. He was sentenced to 15 years to life in prison — an enhanced sentence due to the gang allegation. He is serving his time at Kern Valley State Prison in central California.


During the trials and again on appeal, Riley’s La Jolla attorney Patrick Ford argued that the cellphone evidence was a Fourth Amendment violation, but judges disagreed. The state Supreme Court declined to review the case.


‘Harmonize the law’


The judges in considering Riley’s cellphone search referred to a decision from 1973, which upheld the search of an arrestee’s crumpled cigarette pack that ended up containing drugs.


But attorneys for Riley say cigarette packs and smartphones are in no way alike in the potential for evidence and information they hold. Furthermore, the lawyers say a phone’s digital contents cannot be an immediate threat to an officer’s safety, as other physical items might, during an arrest.


“It’s clear the court has to go back and think about the fact that we’re comparing apples to oranges,” said Hanni Fakhoury, staff attorney of Electronic Frontier Foundation, a nonprofit that advocates for privacy in technology. “Courts across the country have reached different conclusions. We need to harmonize the law.”


The San Francisco-based organization has filed its own petition with the Supreme Court in favor of hearing the case, along with the Center for Democracy and Technology, the Constitutional Accountability Center and the National Association of Criminal Defense Lawyers.


The timing for settling the debate couldn’t be more pressing, advocates argue, with 91 percent of American adults carrying cellphones, and 61 percent using smartphones, according to the Pew Research Center.


In its opposition brief filed last month, the state Attorney General’s Office contended that the courts in California have already ruled that a person’s arrest alone justifies a search. Prosecutors added that Riley would have still been found guilty of the crimes, with or without the cellphone evidence, because of other evidence they had.


The attorney general acknowledged the mounting disagreement around the searches and instead suggested the court debate the issue over a similar drug case out of Boston that has also petitioned for a Supreme Court review. That case involves the search of a more basic flip phone.


An invaluable tool


Law enforcement in San Diego view such cellphone searches as an invaluable tool to track down criminals and build investigations.


“We use it all the time,” said sheriff’s investigations Cmdr. Mike Barletta. He likened the modern smartphone to the “pocket trash” — phone numbers scribbled on little scraps of paper or matchbooks — that cops pulled off arrestees 20 years ago.


“It’s immediately useful to us. It’s rare that suspects operate independently of anyone else, so it helps us learn about contacts and who bad guys are associating with,” Barletta said.


Last week, he said, deputies found drugs on a driver, and a search of the cellphone turned up child pornography. It’s also common for a drug dealer’s phone to continue to get calls from customers during an arrest, giving deputies the opportunity to answer and set up more covert drug buys.


The attorneys in Riley’s case say there are ways to compromise, proposing police seize cellphones during arrests but obtain a warrant before searching through the contents. That way no evidence is destroyed and there is more oversight on the information accessed.


If the Supreme Court takes up the case and finds in favor of Riley, the case would likely get kicked back to a lower court, and he could be retried, sans the cellphone evidence.


An opinion in his favor would also have sweeping influence throughout the country, affecting similar evidence in all pending and ongoing legal cases, including those on initial appeal, as well as day-to-day police procedure.

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