Louisiana Law Review
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 conseq uences 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 Evid ence: A Condition Precedent
to Preservation .................................................................67
IV. Conclusion .............................................................................69