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In Riley v. California, the US Supreme Court interpreted the Fourth Amendment and ruled that police authorities could not search an accused’s cellphone  data without a warrant.

Two articles about this significant decision provide must-read guidance for defense counsel.

The Champion magazine of the NACDL.  The  March 2015  issue contains an extremely useful article by Hanni Fakhoury.   Riley  decided that digital data  merited Fourth Amendment protection.  Several arguments were rejected.  First, a cellphone poses no physical threat to an arresting officer.   Second, the possibility of destruction of evidence is not outcome- determinative.  True enough, some evidence of crimes might be destroyed by a wily defendant; however, the government’s interest in law enforcement must be balanced against the individual’s privacy interests.  And at least on the facts of Riley,  a warrant was required.

Digital phones are different.  Why?   Because cell phones have an immense capacity  to store staggering amounts of personal information.

 ·         Cell phones, differ from other physical items found on a person.   They are, objectively stated, mini- computers with immense storage capacity and significant owner privacy concerns.

 ·         Many types of information can be stored on a cell phone — videos, e-mails, financial records.  They can expose far more than isolated nuggets of information ferreted out by other searches,

 ·         The huge amount of data present reveals much about its owner — cell phones store [and permit access]  to data going all the way back to the date of the phone’s purchase.    Cell phones allow access to detailed records  and data inputted over an extended period of time.  And several hundred stored pictures will reveal much more than just one or two photos.

 ·         Cell phones are a reality in modern society. They are different – warrantless searches would give police access to personal information they might only occasionally stumble across in the pre-digital world.

What’s in the future?  Litigation over video surveillance via use of drones, for one thing.   Technology today affords the police far more sophisticated  opportunities than, say, flying an airplane over a fenced-in backyard to observe whether marijuana was growing . That was the 1986 Supreme Court case of Ciraolo v. California [no Fourth Amendment violation in the observation ].

 Courts are increasingly grappling with how to deal with digital searches and drone surveillance under the Fourth Amendment.  Arguably, Riley provides solid defense Constitutional arguments  to limit to electronic searches, particularity those involving massive digital information.

The Army Lawyer,    Military appellate courts have been active in this area as well, as Lindsay Windsor points out in the March 2015 ARMY LAWYER.  During the 2013 – 2014 term, the Court of Appeals for the Armed Forces decided US v. Wicks, 72 M.J. 93  (2014).    This was four months before Riley.    Anticipating the Supreme Court’s decision, CAAF held that a warrant was required before the government could lawfully search text messages on the service member’s phone .

 Fourth Amendment protections are generally available to service members. However, the member’s expectation of privacy may be diminished in certain circumstances, such as use of computers the government provides for a member’s use.

 The Windsor article points out how Riley usefully analyzes the Fourth Amendment vis-à-vis contemporary technology.  The Supreme Court now has established a new approach for cell phones and, arguably, for other modern technology situations.   Riley sought to discern the spirit of the Fourth Amendment in the context of technology.  This was hardly an Originalist approach — the Founders  could hardly have anticipated such technological breakthroughs.

 Author Windsor commends the Court for appreciating technological challenges for law enforcers – the Court noted such technical concerns as “geofencng” and “cloud computing.”

 The article concludes with interesting predictions on the interplay between Fourth Amendment protections and military necessity.

 Bottom line: Both articles are definitive — and an excellent starting point for practitioners facing such issues.

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