US Supreme Court decision Riley v California – searching data in seized cellphones
Associate Professor Scott Optican of the University of Auckland’s Faculty of Law recently spoke about a 2014 United States Supreme Court (USSC) search and seizure case (Riley v California (2014) 573 US) at an event recently presented by New Zealand Centre for Human Rights Law, Policy and Practice and hosted by Minter Ellison Rudd Watts Lawyers. The theme of the evening was “Privacy and religion: The 2014 US Supreme Court Term and some implications for New Zealand”, and saw Associate Professor Optican and Professor Paul Rishworth QC present two cases from the 2014 USSC term. This article is based on Associate Professor Optican’s talk.
“Reasonable” search and seizure
The United States Bill of Rights comprises the first ten amendments to the United States Constitution. The 4th amendment in particular deals with search and seizure by government actors (usually the police), and states that all such searches and seizures must be “reasonable”. An equivalent provision can be found in section 21 of the New Zealand Bill of Rights Act 1990 (NZBORA), discussed further below.
Associate Professor Optican posed the question, “How does the USSC decide what is reasonable?” To answer that, he turned to the USSC’s view that the essence of the 4th amendment is to protect personal privacy, and that the requirement of “reasonable” search and seizure protects “people and not places”. So, to determine reasonableness with respect to any particular police search, a court would have to balance the nature, scope, and strength of the privacy interest at issue against the law enforcement interests surrounding the police investigation in question. While a reasonable search is one where the law enforcement interests justify a particular intrusion on personal privacy, an unreasonable search is one where the privacy interests win out.
Over the decades, the result of this balancing approach has been to create categories of “reasonable” and “unreasonable” searches and seizures under the 4th amendment. Because they are constitutionally based, these apply to police officers all over the United States. In fact, almost all of the important and interesting rules of police search and seizure have been shaped by USSC interpretations of reasonableness, meaning that the most significant rules in the United States governing police searches are a product of constitutional common law.
Riley v California – facts and issues
Turning to the case at hand, Riley v California dealt with one clear and reasonable type of search under the 4th amendment – the “search incident to arrest” rule (SITA). As far back as 1969, the USSC held that, when an individual was arrested by the police, the police could search his or her person, any containers in his or her possession (such as a wallets, cigarette packs, handbags or backpacks), and any other receptacles or spaces within the arrestee’s immediate grabbing area. The justification for the SITA rule had to do with both sides of the 4th amendment balancing test. On the privacy side, criminal suspects were said to have “reduced expectations of privacy” once the police had taken control of their person, based on probable cause to believe that they had committed a crime. On the law enforcement side, the police were said to have strong interests in conducting the search in question, in order to make sure that:
- the suspect did not have access to a weapon; and
- in order to search for evidence in the suspect’s possession that could be relevant to the offence charged or other offences.
Hence, searches under the SITA rule were held reasonable under the 4th amendment, and the USSC established this as a bright line rule for police – whether or not there were actually facts to suggest that a search was necessary to secure evidence or seize weapons from an arrested criminal suspect.
The facts at issue in Riley v California were as follows. Mr Riley was arrested in 2009 by California police following a lawful traffic stop, which subsequently revealed that he had loaded firearms in his car. As part of the arrest process, Mr Riley was subjected to a SITA and his cellphone (which was a smartphone) was seized from his pocket. Believing that they had the 4th amendment authority to search all objects and containers in Mr Riley’s possession, police officers went through the messages, contacts, videos and photographs on the smartphone. In doing so, they found evidence that linked Mr Riley to an unrelated shooting that had taken place several weeks prior to his arrest and in respect of which he was ultimately charged.
Prior to trial, Mr Riley applied to suppress all of the evidence that police had obtained on his cellphone (pursuant to the USSCfashioned exclusionary rule for illegallyobtained evidence), claiming that the cellphone had been unreasonably searched under the 4th amendment. The State of California (unsurprisingly) moved to dismiss the claim, stating that the well-established SITA doctrine permitted the full search of Mr Riley’s cellphone, just like it did any other object or container in Mr Riley’s possession. The Californian Supreme Court held that the SITA rule applied, and the case went to the USSC from there.
Associate Professor Optican likened the way in which the case was framed in the USSC to a “Sesame Street” argument, based on the television show’s popular “Which of these things is not like the other?” segment. Essentially, Riley v California comes down to just that: is a cellphone just like a wallet or handbag, for the purposes of applying the SITA rule? Or is a smartphone different enough to such objects that a different reasonableness balancing test under the 4th amendment should apply? While the Californian Supreme Court argued that these types of items were not different from each other, in a 9-0 decision the USSC disagreed.
Decision of the USSC
Writing the principal opinion for the USSC, Chief Justice Roberts said that comparing modern smartphones to wallets, for the purposes of applying the SITA rule, was like saying “a ride on horseback is materially indistinguishable from a flight to the moon”. The USSC acknowledged that, with respect to the law enforcement interests justifying the reasonableness of the SITA rule, modern smartphones could very likely contain significant evidence of criminal activity. However, on the privacy side of the balancing equation, modern smartphones, “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse”.
Noting that smartphones differ “in both a quantitative and qualitative sense from other objects that may be kept on an arrestee’s person”, the USSC stated that the sum of an individual’s entire life could be reconstructed from the digital data stored on such a phone. The heightened privacy concerns implicated by smartphone searches thus demanded a different 4th amendment balance than the one justifying the established SITA rule. The new rule, said the USSC, is that before searches of the databases of smartphones taken from arrestees could take place, police must have:
- probable cause to believe that the phone will contain evidence of criminal offending; and
- turn that into an application for a search warrant granted by a detached and neutral magistrate.
In response to the argument that this would cause an increased burden on law enforcement when dealing with arrestees, Chief Justice Roberts replied simply: “Privacy comes at a cost.”
Relevance to New Zealand law
So, why is Riley v California important and what are its implications (if any) for New Zealand search and seizure law? The case is important because it is the first USSC search and seizure decision to recognise that traditional rules of “reasonable” search and seizure (and the traditional 4th amendment balancing acts that underlie them) may need to be revised and revisited in light of the heightened privacy interests created by digital storage devices and, more broadly, the storage of private information in the digital age. So, for those interested in United States search and seizure law, this is an interesting jurisprudential development. It remains to be seen how far such rethinking might be taken and applied in 4th amendment cases to come.
However, its relevance in New Zealand is not entirely clear. New Zealand passed a new Search and Surveillance Act in 2012 that was meant to revise and codify New Zealand’s overall law of search and seizure for police and other government actors. Section 88 of that Act gives New Zealand police the power to search the persons of arrestees (or other lawfully detained individuals) without a warrant (as required by Riley v California), if a police officer has “reasonable grounds to believe” that there is “anything on or carried by” the arrestee that “may be used to harm any person”, “facilitate the [arrestee’s] escape”, or “is evidential material relating to the offence” for which the person was arrested or lawfully detained.
Where section 88 applies, the statute would seem to encompass searches of smartphones carried by arrested criminal suspects, perhaps leading to the inference that the new Act settles the matter as far as the application of Riley v California might be concerned. But maybe not, considers Associate Professor Optican. Coming back to section 21 of the NZBORA, he notes that this section, like the 4th amendment to the US constitution, also requires that all police search and seizure be reasonable – even the ones that are legal under an authorising statute like section 88. Indeed, established law on section 21 makes it very clear that invocation of a lawful search power by police can, depending on the circumstances, still be unreasonable under section 21 of the NZBORA. Moreover, in making those determinations of reasonableness or unreasonableness under section 21, New Zealand judges have:
- engaged in the same kind of law enforcement/privacy balancing act that informs US 4th amendment law; and
- made it clear that, if police are in a workable position to get a warrant from a detached and neutral magistrate without risking the loss or destruction of evidence, section 21 suggests that they should do so. In many (if not all) instances where cellphones are seized from arrestees, that circumstance will apply.
So, on the assumptions that: (a) New Zealand police will search the smartphones of arrested criminal suspects without a warrant pursuant to section 88 of the Search and Surveillance Act; and (b) New Zealand criminal defence lawyers will claim that such lawful, warrantless searches are nonetheless an unreasonable infringement on privacy under section 21 of the NZBORA, Riley v California could be influential as a jurisprudential model for decisions in defence applications to exclude the evidence from such searches pursuant to New Zealand’s version of the American exclusionary rule (currently found in section 30 of the Evidence Act 2006).
Indeed, if the reasoning behind Riley does commend itself to New Zealand judges, it would have the effect of “reading down” section 88 of the Search and Surveillance Act based on limits imposed by section 21 of the NZBORA – at least in situations where police have a workable opportunity to secure a search warrant for items in an arrestee’s possession (such as a cellphone) implicating some manner of heightened privacy concerns.
Scott Optican is an Associate Professor at the University of Auckland’s Faculty of Law, where he specialises in evidence, criminal procedure and comparative criminal procedure, and has written widely on criminal trial and policing issues arising under the NZBORA.