The Strife of Riley: The Search-Incident Consequences of Making an Easy Case Simple

• Author: Leslie A. Shoebotham
• Pages: 28-70

Louisiana Law Review Volume 75 | Number 1 Fall 2014 The Strife of Riley: The Search-Incident Consequences of Making an Easy Case Simple Leslie A. Shoebotham Repository Citation Leslie A. Shoebotham, The Strife of Riley: The Search-Incident Consequences of Making an Easy Case Simple , 75 La. L. Rev. (2014) Available at: http://digitalcommons.law.lsu.edu/lalrev/vol75/iss1/7 This Article is brought to you for free and open access by the Law Reviews and Journals at DigitalCommons @ LSU Law Center. It has been accepted for inclusion in Louisiana Law Review by an authorized administrator of DigitalCommons @ LSU Law Center. For more information, please contact sarah.buras@law.lsu.edu . The Strife of Riley : The Search-Incident Consequences of Making an Easy Case Simple Leslie A. Shoebotham * ABSTRACT In Riley v. California, the U.S. Supreme Court held that the Fourth Amendment requires police officers to obtain a warrant before searching an arrestee’s cellular phone in a search incident to a lawful arrest. The lauded decision heralds the modernization of the Fourth Amendment to embrace privacy in the digital age. But Riley ’s reasoning contains a flaw that only Justice Alito recognized. Evidence gathering—i.e., the need to look for evidence of the arrestee’s crime for use at trial—has long justified law enforcement’s authority to perform incident searches. Indeed, evidence-gathering searches incident to arrest were recognized as legitimate searches over a century before the adoption of the Fourth Amendment. The Riley Court ignored this pedigree, however. Despite the doctrine’s centuries-long history, Riley concluded that the authority to search incident to arrest was defined by a trilogy of cases— California v. Chimel , United States v. Robinson , and Arizona v. Gant —cases that date back only to 1969. Based on the Chimel line, Riley concluded that the justifications for performing an incident search were limited to officer safety and preventing the destruction of evidence. And the only evidence-gathering incident search that Riley recognized was based on Gant ; an incident search of the passenger compartment of an arrestee’s vehicle that Riley justified solely on the “unique circumstances” involved in the automobile context, not the search-incident doctrine’s historical evidence-gathering basis. Therein lies the concern. By ignoring the doctrine’s evidence-gathering history, Riley has reorganized the search-incident doctrine into a rigid Chimel -based rule that just so happens to have a vehicle exception. This Article amplifies Justice Alito’s admonition that evidence gathering must be recognized as a legitimate justification for police to search incident to arrest. This Article addresses the consequences of Riley ’s digital-age reboot of the search-incident doctrine, especially Riley ’s limitation of Gant to the vehicle context—a restriction that was, ironically enough, not necessary for imposing Copyright 2014, by LESLIE A. SHOEBOTHAM. * Victor H. Schiro Professor of Law, Loyola University New Orleans College of Law; LL.M., Tulane University School of Law; J.D., University of Houston Law Center; B.S.N., University of Texas Medical Branch. I would like to thank my research assistants, Andrea Jones and H. Rick Yelton, for their excellent research skills in preparing this Article. 30 LOUISIANA LAW REVIEW [Vol. 75 a warrant requirement on cell phone searches. Rather than relying solely on Chimel ’s two “concerns,” this Article argues that the search-incident doctrine has been supported—both before and after Chimel —by three justifications: officer safety, preservation of evidence, and importantly, the need to discover evidence of the crime of arrest. Without evidence gathering as an implicit justification in a properly limited search incident to arrest, Riley ’s limitation of Gant calls into doubt law enforcement’s authority to perform an incident search of an arrestee’s reaching distance—a Chimel search—to look for evidence of the arrestee’s crime once the arrestee has been handcuffed and is adequately secured. All things considered, Riley represents much more than a common-sense warrant requirement for cell phone searches. Riley is the deceptively simple beginning of the end of evidence gathering as a justification in a properly limited search incident to arrest. TABLE OF CONTENTS Abstract ..........................................................................................29 Introduction ....................................................................................31 I. Riley v. California : The Savior of Cell Phone Privacy ..........36 II. The Search-Incident-to-Arrest Doctrine: An Ancient Rule ...41 A. Evidence-Gathering Searches Incident to Arrest: The Search-Incident Doctrine’s Original Rationale.........44 B. The Pendulum Swings in Chimel v. California ...............48 C. The Pendulum Swings Again: A Doctrine in Transition .........................................................................58 III. Riley ’s Impact: Beyond the Cell Phone Context ....................60 A. The Doctrinal Implications of Reconfiguring Gant .........60 B. Restricting Gant ’s Evidence-Gathering Search to Vehicles ............................................................................64 C. Procurement of Evidence: A Condition Precedent to Preservation .................................................................67 IV. Conclusion .............................................................................69 2014] THE STRIFE OF RILEY 31 INTRODUCTION Lurking behind this issue [of warrantless searches of cell phones incident to arrest] is the question whether and when a laptop or desktop computer, [or] tablet . . . can be searched without a warrant—for a modern cell phone is a computer. 1 Americans love their gadgets. As technology has made electronic devices more portable, Americans increasingly carry with them devices that provide access to their most private information, both financial and personal. 2 That people carry cellular phones is a self-evident truth. Advances in technology have meant that modern cell phones do much more than make phone calls, however. So-called “smart phones,” such as Droid, Galaxy, and iPhone, provide advanced computing capabilities to their users, including Internet access. 3 The storage capability of such devices is vast. 4 Built-in apps and downloadable third-party apps allow people to perform a myriad of tasks—everything from playing Angry Birds 5 to accessing live video of the interior of their 1. United States v. Flores-Lopez, 670 F.3d 803, 804 (2012). 2. Cf. City of Ontario, California v. Quon, 560 U.S. 746, 760 (2010) (“Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.”). 3. PCMag.com’s online encyclopedia defines a smart phone as: A cellular telephone with built-in applications and Internet access. In addition to digital voice service, modern smartphones provide text messaging, e-mail, Web browsing, still and video cameras, MP3 player and video playback and calling. In addition to their built-in functions, smartphones run myriad free and paid applications, turning the once single-minded cellphone into a mobile personal computer. Definition of: Smartphone , PCMAG.COM, http://www.pcmag.com/encyclopedia /term/51537/smartphone, archived at http://perma.cc/FAT5-DA34 (last visited Sept. 7, 2014). 4. Apple’s iPhone 5, for example, comes with up to 64 gigabytes of storage. See Tech Specs , APPLE, http://www.apple.com/iphone-5s/specs/, archived at http://perma.cc/7EMD-AZ72 (last visited Sept. 7, 2014). This device’s storage capacity is equivalent to about “four million pages of Microsoft Word documents.” See Charles E. MacLean, But, Your Honor, a Cell Phone is Not a Cigarette Pack: An Immodest Call for a Return to the Chimel Justifications for Cell Phone Memory Searches Incident to Lawful Arrest , 6 FED. CTS. L. REV. 38, 42 (2012) (“A cell phone with just one gigabyte of memory can store over 64,000 pages of Microsoft Word text, or over 100,000 pages of e-mails, or over 675,000 pages of text files.”). 5. Rovio Entm’t Ltd., Angry Birds , APPLE, https://itunes.apple.com/us/app /angry-birds/id343200656?mt=8, archived at http://perma.cc/Q6MM-5YA8 (last visited Sept. 7, 2014) (describing strategy of game as: “The survival of the Angry Birds is at stake. Dish out revenge on the greedy pigs who stole their eggs”). 32 LOUISIANA LAW REVIEW [Vol. 75 homes. 6 As the United States First Circuit Court of Appeals observed in United States v. Wurie : “In short, individuals today store much more personal information on their cell phones than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers . . . .” 7 Although password protection of cell phones and portable electronic devices provides some measure of protection for the phone or device’s stored data, that protection is technological, not constitutional. 8 Without protection from the United States Supreme Court, an incident search of even a password-protected cellular phone was likely already technologically feasible for law enforcement to perform. 9 Against this backdrop, prior to Riley v. California 10 most courts ignored the privacy implications of cell phone searches and, 6. SKJM, LLC, iCam – Webcam Video Streaming , APPLE, https://itunes .apple.com/us/app/icam-webcam-video-streaming/id296273730?m t=8, archived at http://perma.cc/BD9T-TYNM (last visited Sept. 7, 2014). In United States v. Flores-Lopez , Judge Posner, writing for a panel of the Seventh Circuit, used this particular downloadable app to illustrate how intrusive a warrantless cell phone search could be—by providing police with the functional equivalent to physical entry into the cell phone owner’s home. See 670 F.3d 803, 806 (7th Cir. 2012) (“At the touch of a button a cell phone search becomes a...