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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Friday, May 16, 2014

California's Cell Phone Privacy Case Heads to SCOTUS

By: Timothy P. Flynn

California college student and convicted gang member, David Riley, had the misfortune of having a routine "tail light" stop turn into a 15-to life weapons-n-[attempted] murder-related sentence.  There were, of course, a few steps in between.

As SCOTUS editor Amy Howe puts it in plain English, the case is the Law & Order version of "If You Give A Mouse A Cookie".  The traffic stop led to the discovery that Riley's drivers license was suspended; bummer, arrested.

When law enforcement makes an arrest, the practice of conducting a search incident to that arrest is one of the exceptions to the 4th Amendment's warrant requirement.  Well, in Riley's case, that search led to..., you guessed it....weapons!  Guns in the trunk.

He says: target practice; they say: Gang-related, and attempted murder.  Oh yeah, the cops also located Riley's cell phone in the car.

The cops extract the data from Riley's cell phone which ultimately help them prove their capital charges.  At his trial, over his objection, the cell phone data suggested to the jury that Riley may have ran with a gang, and that he knew some things about the attempted gang hit for which he was being prosecuted.  

Then there's the sentencing hearing.  Huge sentencing problems in this case; enhancements are all over the place.  Essentially, the sentencing enhancements are a direct result of the weapons and attempted murder convictions which were largely based on Riley's cell phone data.

That's how Mr. Riley caught his case.  It does raise some interesting concerns for the rest of us; hence SCOTUS wisely granting certiorari.

Riley's direct state court appeal was rejected on the basis of a recent California Supreme Court decision holding that the scope of an officer's "search-incident-to-arrest" includes the arrestee's cell phone.  The next step for Riley was to petition the SCOTUS for a writ of certiorari.

We here at the Law Blogger are glad they took the case and will be waiting for this decision; hopefully to be issued as the Court wraps up its term.  The case was only argued in late April, so it's sure to be one of the final decisions released.  

Ms Howe summarized Riley's argument in a recent SCOTUSBlog post:
In his briefs at the Supreme Court, David Riley urges the Court to overturn the decision below.  He warns that a ruling in the state’s favor could sweep broadly, affecting the thousands of people who are arrested every day in the United States — often for offenses as trivial as jaywalking that don’t ever result in convictions.  Allowing police to search smart phones whenever they arrest someone would be a serious invasion of privacy, he says, because so many of us keep so much private information on them.  Indeed, Riley adds, this is exactly the kind of “general search” – looking through people’s homes and offices in the hope of finding evidence of a crime, even if the police didn’t have any real reason to believe that one had been committed – that the Framers of the Constitution were trying to prevent when they drafted the Fourth Amendment. 
Turning to more specific legal arguments against allowing cellphone searches without a warrant, Riley contends that, of the two rationales for allowing searches after someone is arrested, neither justifies the search in his case.  First, although police can search an arrestee for weapons that could be used to harm them, smart phones only contain things like texts, emails, photos, and videos, all of which “are categorically incapable” of being used as weapons.  Second, once police have the smart phone, there is no danger that the arrestee can destroy any evidence that it might contain:  during the time that it takes police to get a warrant, they can prevent someone else from accessing the phone remotely by putting it in a Faraday bag, which is designed to block cellular, WiFi, and other signals from reaching the phone.
If law enforcement can lawfully seize and forensically examine your cell phone pursuant to an arrest for something like, say, spitting on the sidewalk [or any valid arrest, however minor], then they can basically get the meta-data of your life which may or may not lead to counts being added to your felony charging instrument.

Well, it's Big Brother, for sure.  Amazing how vital a cell phone/computer has become to the average citizen.

Just remember, however, that your device can fall into the hands of the government at any moment in time. Nothing to hide, nothing to fear?  Let us see how the SCOTUS views it.

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