Cell Phones May Not Be Searched Incident to Arrest Says Unanimous Supreme Court

• Riley v. California, 573 US ___, 134 SC 2473, ___ LE3 ___ (14) #13-132

In a rare unanimous opinion on a search case, the United States Supreme Court holds that law enforcement must first obtain a search warrant before checking the contents of a cell phone. In doing so they explicitly reject the idea that such a search is justified as “incident to arrest.”

The decision combines two cases with simple fact patterns. Riley’s was as follows

Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted.

The California Court of Appeal affirmed.

The United States Supreme Court, per Roberts, C.J., reversed and remanded. The gist of the holding:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s per- son. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.

The Court recognized that there may be case-specific exigent circumstances (such as a child abduction or the texting of an accomplice to detonate a bomb) which allow for a cell phones data to be searched. But that was not the case here.

In his concurring opinion, Justice Alito said:

Many forms of modern technology are making it easier and easier for both government and private entities to amass a wealth of information about the lives of ordinary Americans, and at the same time, many ordinary Americans are choosing to make public much information that was seldom revealed to outsiders just a few decades ago….In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.

NOTE: The contrary holding of the California Supreme Court in Diaz, 51 C4 84, 119 CR3 105, 244 P3 501 (11) is no longer good law.

No Detention With Police Emergency Lights on Parked Car; Split in Appellate Courts

• Brown, 226 CA4 142, 171 CR3 480 (14)

In People v. Bailey, 176 CA3 3402 (85), the court held that emergency lights from a police car would lead a reasonable person to believe he is being detained.

This case disagrees with Bailey, and holds that when a car is parked, police lights alone don’t amount to a detention.

Sheriffs were investigating a report of a fight in an alley. They drove in as Def’s car drove out, but didn’t see any people. They turned around and found Def parked, with brake lights on. They pulled up and turned on the overhead emergency lights.

Approaching, a deputy caught signs of intoxication. Eventually Def was arrested and charged with DUI. His suppression motion was denied.

The Court of Appeal, per Huffman, Acting P.J., affirmed.

Brown asserts he was detained the moment the deputy turned on the overhead lights on the patrol car, even though Brown had previously stopped on his own. Brown relies primarily on the opinion of the Sixth District Court of Appeal in Bailey, supra, 176 Cal.App.3d 402. There a divided panel of the court concluded that: “A reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer. Any reasonable person in a similar situation would expect that if he drove off, the officer would respond by following with red light on and siren sounding in order to accomplish control of the individual.”  (Id. at p. 406.)

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The basic thrust of the analysis in Bailey is that red lights are a showing that police will chase you if you do not remain stopped.  The analysis does not take into account, as did the dissent, that there needs to be some evidence that the person yielded to that show of authority.  In the case of a stopped vehicle approached by police, we believe there must be something more than merely activating the red lights to accomplish a detention…