Tagged: search of cell phone

Professors, Prosecutor, and Police Chief Address Cell Phone Searches after Riley

POST WRITTEN BY: Rebecca Arbolino (’16), Pace law School

On October 7, 2014, Pace Law School CLE and the Pace Law School Criminal Justice Institute co-hosted “Cell Phone Searches after Riley: Investigative and Evidentiary Issues.” The CLE commenced in the Gerber Glass Law Library Moot Court Room. Streaming video of the event was available online from Pace Law School.

Pace Law Professors Bennett Gershman, David Dorfman, and David Bender, along with two distinguished Pace Alumni, discussed the implications of the recent Supreme Court decision in Riley v. California.  Professor Bender is not only a professor at Pace Law but also a sole practitioner with extensive experience in technology and privacy litigation. Thomas Kapp, an Assistant District Attorney for Bronx County, and Chris McNerney, Esq., the Chief of Police for the Town of Greenburgh, added insight and practical depth to the scholarly panel. The moderator, Pace Law School 3L Annmarie Stephanic, began the event with a recorded webinar conversation between Prof. Gershman, a former defense litigator and prosecutor and A.D.A. Thomas Kapp. After the webinar, the panelists discussed Fourth Amendment issues after Riley. Finally, the panelists answered questions from attendees.


The webinar elucidated the main issues presented by Riley. Professor Gershman remarked upon Riley as a “landmark case.”  Riley is the first Supreme Court decision about police intrusion upon technological privacy, and Gershman found that the decision’s unanimity was “startling.”

A.D.A. Kapp explained that the practical implications for policing are minor: most prosecutors find it prudent not to use evidence acquired through warrantless cell phone searches. Rules for New York State and other states for searches incident to valid arrests required warrants to search cell phones before Riley in the absence of exigent circumstances or consent. According to Kapp, since the scope of Riley’s holding is limited to cell phones, warrantless searches of digital devices such as flash drives and digital cameras are still permissible.

Gershman agreed with the limited scope of Riley, but applied the reasoning therein to other devices like laptops: if an item’s immense storage capacity heightens the privacy intrusion of searching that item, then searches of digital devices similar to cell phones involve a heightened individual privacy interest. Under the Fourth Amendment reasonableness balancing test for warrantless searches, the question is whether any legitimate government interest outweighs the intrusion upon individual privacy interest. If the heightened privacy interest in cell phones expressed in Riley applies to similar devices like laptops, then the scales may tip toward requiring warrants to search those similar devices.

Kapp called Riley “a seminal case for the digital world” because the Supreme Court finally recognized the individual “right to digital privacy.”

Panel Discussion

Following the showing of the webinar, the panel discussion began with Prof. Bender explaining the rapid changes in privacy law. Privacy law changes in response to developments in technology such are drones and data mining.

Prof. Dorfman ignited the conversation with a criminal defense perspective: although police can often obtain a search warrant quickly, problems specific to searches of cell phones arise in applying for and issuing warrants. For example, if an officer arrests someone for selling drugs and he discovers a cell phone on the arrestee’s person, then is there a sufficient nexus between the drug selling and cell phone to establish probable cause for searching the cell phone? Prof. Dorfman further remarked upon Riley’s impacts for particularity in warrants to search cell phones: if cell phones contain immense amounts of data and are subject to heightened privacy interests, then do warrants to search cell phones require more particularity than they did before Riley?

Police Chief McNerney explained that officers in New York State almost always apply for a search warrant to search a cell phone. In applying for a search warrant, the officer asks for permission to search all possible areas in which he may obtain evidence of the crime, and the judge limits the officer’s requests. Satisfying the particularity requirement is thus the province of judges.

A.D.A. Kapp predicted that search warrants for both cell phones and other digital devices like computers will soon be subject to heightened particularity requirements. Although the particularity requirement presents specific problem in the context of digital searches, judges may decide to limit the scope of digital searches by issuing particularized warrants thereof.

Prof. Gershman mentioned the doctrine of minimization. Minimization requires particularity in order to avoid the search of information that is either privileged or unrelated to the crime.

Despite the Circuit Split about the particularity requirement for digital search warrants, Prof. Bender suggested the following procedure as a way to satisfy the doctrine of minimization. Officers create a bitstream copy, or mirror image, of the data to be searched. After a neutral third party conducts the search of the bitstream copy, the third party then provides officers with only information that is both non-privileged and relevant to the offense.

Prof. Dorfman further elaborated upon the framers’ concerns about “general searches.”  The doctrine of minimization and the particularity requirement are designed to prevent such searches. The Riley court explained that a search of a person’s cell phone is more intrusive than a search of his house is. The problem with particularity in searches of cell phones arises because of the plain view doctrine. For example, if officers are conducting a valid search for contraband ‘X’, then officers can seize contraband ‘Y’ so long as contraband ‘Y’ is in plain view during the search for contraband ‘X’. Evidence in plain view of crimes irrelevant to the authorized search is especially problematic in searches of cell phones with immense storage capacities.

According to Chief McNerney, the constitutionality of cell phone searches ultimately “boils down to reasonableness.” Prof. Dorfman explained, however, that “reasonableness” is not all-or-nothing: an individual who uses technology does not necessarily relinquish his right to privacy.

Prof. Gershman and the panelists ended the discussion with the framers’ intent: the framers themselves could not have imagined a device like a cell phone. Surprisingly, though, the Supreme Court originalists agreed that cell phones deserve heightened privacy protection. The Supreme Court pushes principles until they become illogical. In United States v. Robinson, 414 U.S. 218 (1973), the assumption that defendant had no expectation of privacy in his cigarette pack rang true. In Riley, however, the assumption that defendants had no expectation of privacy in their cell phones became illogical.

Q &A Session

An astute attendee asked about the significance of Riley’s warrant requirement, given the various exceptions thereto. Namely, if warrantless searches are permissible when no exigent circumstance exists, the owner consents to the search, or the officer conducts an inventory search, then does the warrant requirement change anything?

Although the panel understood exigent circumstances as a valid exception to the warrant requirement for nearly any search, panelists opined about consent and inventory searches. Chief McNerney explained that consent can be problematic.  The NYPD, for example, required specific, written consent forms instead of verbal consent.

A.D.A. Kapp wondered if the exception for inventory searches applies to cell phones: if cell phones are containers, then inventory searches thereof ensure that the owner cannot later claim that data is missing. Riley does not address whether a warrantless inventory search to catalog cell phone data is reasonable under the Fourth Amendment. Prof. Dorfman responded that an inventory search cannot be a ruse for an investigative search: the police have the burden to create a non-investigatory procedure for inventory searches.

Prof. Dorfman also inquired about whether warrantless searches of other digital devices stored in a vehicle fall under the automobile exception to the warrant requirement. Riley requires a warrant for cell phones within a legal automobile stop, even when officers have probable cause to believe that there is contraband inside the automobile. Riley does not, however, address whether searches of similar devices require warrants within the context of the automobile exception.

Another attendee asked about Riley’s rejection of applying the container analogy to cell phones: are there further implications for searches of similar, non-container devices? The panel agreed that Riley’s rejection of the container analogy to cell phones implies changes in the future of digital searches, but expressed that Riley does not illuminate the nature of those changes. Prof. Dorfman explained the impossibility of applying the constitutional text and framers’ intent to searches of intangible things like digital data: such application is like trying to fit “a square peg into a round hole.”  Prof.  Bender said that it may be best for the legislature to answer such questions.

Prof. Gershman concluded the discussion stating that both the judiciary and the legislature are “behind the curve perpetually” in the light of rapidly changing technology.

TODAY – Cell Phone Searches after Riley: Investigative and Evidentiary

Pace Criminal Justice Institute is co-hosting a CLE TODAY – Tuesday, October 7, 2014 at 6:00 pm – 8:30 pm titled Cell Phone Searches after Riley: Investigative and Evidentiary, in the Law Library Moot Court Room, at Pace Law School, White Plains, NY.

Join the panel of speakers including Professors David Bender, David Dorfman, and Bennett Gershman, Bronx A.D.A. and ’88 alumni Thomas Kapp, and Town of Greenburgh Chief of Police and ’06 alumni Chris McNerney as they discuss the implications of the United States Supreme Court decision Riley v. California, No. 13-132, 13-212, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). In Riley, the Court consolidated two criminal appeals that both involved a defendant challenging the admissibility of evidence found during police officers’ warrantless search of data stored on the defendant’s cell phone.

Attendees can earn up to 2.5 CLE skills credit. We look forward to seeing you there!

Warrantless Cellphone Search Decision: Resources

Last week, on June 25, 2014, the U.S. Supreme Court issued a decision in Riley v. California, a decision combining California and Massachusetts cases challenging the warrantless search an arrestee’s cellphone incident to arrest. The Court unanimously concluded that the police are not entitled to search a cell phone incident to arrest without a warrant, absent exigent circumstance, and as such must seek a properly executed warrant to search a cellphone.  This decision was almost instantaneously covered by a number of newspapers, reporters, and bloggers, and we bring you a short compilation of some of the online coverage.

The U.S. Supreme Court Decisions

Pre-Decision Coverage

Post-Decision Newspaper Articles & Blog Posts

Click here, to explore recent (2014 on) scholarly articles on the subject.

Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container? by Thomas Kapp

The Pace Criminal Justice Center is honored to feature an article by Thomas Kapp,  Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?  Thomas Kapp is the Senior Investigative Attorney at the Bronx County District Attorney’s Office and a member of the Pace Criminal Justice Center Advisory Board. In his article, he

review[s] the current federal standard for a search incident to arrest of containers and how some federal and other state courts have addressed the search of a cell phone.  In addition, [he] discusses the development of the law in New York of the right of police to conduct a search incident to arrest of a closed container and will also address whether that right includes the search of a cell phone incident to arrest, an issue which may be ripe for our courts.

As the article notes, this issue will be decided this term by the United States Supreme Court.  Mr. Kapp concludes his analysis by assessing the future of searches of cell phones incident to arrest in the State of New York.

Enjoy reading the full article: Thomas Kapp – Search of Closed Containers Incident to Arrest: Is a Cell Phone Just Another Container?

SCOTUS Agrees to Hear and Resolve Search of Cell Phones Incident to Arrest

The U.S. Supreme Court recently granted certiorari in two cases involving searches of cell phones incident to arrest. Riley v. California, No. 13-132, review granted 1/17/14; United States v. Wurie, No. 13-212, review granted 1/17/14.

There is a split of authority on this issue:  some courts have held that existing Supreme Court precedent involving search incident to arrest is applicable, i.e., that a phone is no different than any other hand-held container and may be searched incident to arrest without a warrant, probable cause, or even reasonable suspicion.  Other courts have refused to apply that precedent, treating cell phones as sui generis because of the tremendous amount of personal information contained in a typical smart phone.

In Wurie, the First Circuit held that mobile phones are different from the containers other courts have allowed to be searched incident to arrest. It held unconstitutional a police search of the defendant’s numbers in the call log on his mobile phone incident to his arrest.  United States v. Wurie, 728 F.3d 1 (1st Cir. 2013).  In Riley, the California state court upheld a warrantless search of the defendant’s mobile phone address book, photographs and videos incident to his arrest for a firearms offense that then linked him to a drive-by shooting. People v. Riley, No. SCD226240, 2013 WL 475242 (Cal. Ct. App. 2013) (not certified for publication in official reports and not to be cited pursuant to California Rules of Court, Rule 8.1115(a) except as provided in Rule 8.1115(b)).