OCBA UPDATE: Going, going, gone*

By James G. Derian An eventful bar year has flown by and I've been advised to recount all the things we've undertaken and accomplished. Things like the successful search for our terrific new executive director, Terri Ticknor Gilbert. Things like launching our new Constitution Day and Law Day programs for the Pontiac schools with the financial support of the OCBF. And things like making our voices heard in Lansing on legislation affecting the delivery of legal services, such as the Court of Claims bill, "dark money" in judicial elections and, most recently, the proposed Senate bill to convert the State Bar of Michigan into a voluntary bar association. We could also talk about the new OCBA strategic plan and the new OCBA website, which we to hope to have up and running by early 2015. But instead, I'd rather tell you about a very important Fourth Amendment case that was heard for oral argument on April 29 by the U.S. Supreme Court. It's actually two consolidated cases, Riley v. California1 and United States v. Wurie2. The central issue presented by this consolidated case is whether the digital content of a cellular telephone validly seized incident to an arrest may be searched without a warrant and, if so, the permissible extent of such a warrantless search. In Riley, the police stopped the defendant for an expired license plate. After determining his driver's license was suspended, they impounded and inventoried the car, discovering two loaded guns hidden under the hood. Riley was then arrested on a felony gun charge. During a search of his person incident to the arrest, the police took a cell phone from his pocket and searched its digital files, finding evidence that led to his conviction on several gang-related felonies, including shooting into an occupied vehicle. Wurie involves a drug dealer arrested after a cocaine street sale. During a search incident to his arrest, two cell phones were taken from him. Wurie gave the police a false home address, but the officers determined his true address after searching one of his phones. They then obtained a warrant and searched Wurie's apartment, finding evidence that led to his conviction of multiple felonies related to drug distribution and illegal weapons. The defendants argue that mobile phones should not be treated like other items that can be taken from an arrestee and lawfully searched without a warrant because smartphones contain the equivalent of millions of pages of text, much of it highly personal. Prior to the advent of digital technology, an individual could only carry on his person information that was recorded on paper, vinyl or film. That reality meant people did not routinely carry on their person large amounts of information about themselves, particularly financial and medical information. Smartphones, in contrast, are often used to replicate the functions performed on home computers. The First Circuit in Wurie agreed, finding that mobile phones are sufficiently different from other items people carry on their person that they should be accorded greater privacy and, thus, legally regarded as objects found in the vicinity of the arrestee, consistent with Chimel v. California3. The First Circuit went on to rule that neither of the two Chimel criteria for a warrantless search was satisfied because the search of Wurie's phone was not necessary for either: (1) officer safety, or (2) preservation of evidence. Accordingly, it ruled that the search-incident-to-arrest doctrine permits the police to seize and retain control of a cell phone incident to arrest, but not search its data until a neutral magistrate determines there is probable cause for a warrant. Defendants Riley and Wurie argue that the First Circuit's holding respects law enforcement's interests in evidence preservation and officer safety, while also upholding an individual arrestee's expectation of privacy in his cell phone data. The prosecution, in turn, argues the Court should not exclude cell phones from the "traditional and unqualified authority" of the police to search items found on the person of an arrestee. As the Court recognized in Robinson4 and Chadwick5, the historical authority to conduct a warrantless search of items on an arrestee's person rests primarily on the "reduced expectations of privacy caused by the arrest" and law enforcement's interest in gathering evidence relevant to the crime of arrest. In contrast, the authority to search the area around the arrestee is governed by the law enforcement interests identified in Chimel: protecting officer safety and preventing destruction of evidence. Under Robinson, "the fact of the lawful arrest â?¦ establishes the authority to search" and, therefore, "a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a â??reasonable' search under that Amendment." Moreover, the prosecution maintains that mobile phones do not generally contain a different type of information than an individual might carry in a purse, briefcase or otherwise on his person including photographs, diaries, address books, financial, medical/pharmaceutical or other highly personal records. The Court has allowed warrantless searches of all such personal items under the search-incident-to-arrest doctrine. As a result, there is no qualitative difference in the items being searched on a cell phone. The "quantitative" difference in the amount of data held by cell phones does not justify a special constitutional rule. Because cell phones have become important tools for criminals, law enforcement officers have a compelling evidence-gathering interest in searching cell phones of arrestees as soon as possible to advance their investigation and disrupt ongoing criminal enterprises. Cell phones can memorialize communications among confederates, capture criminal activities on camera, and contain clues to the location of victims or contraband, as well as reveal the time and place of planned robberies or terrorist attacks. Once confederates or family members learn that the suspect has been arrested, they may take action to inhibit the ensuing investigation. Drugs may be flushed, records destroyed, witnesses intimidated, and co-conspirators may flee. Furthermore, the prosecution argues, even if the narrower Chimel justifications are applied to a search of objects found on the person of an arrestee, warrantless cell phone searches should still be deemed lawful because searching an arrestee's cell phone immediately upon arrest is often critical to protecting evidence against destruction because of "remote wiping," automatic passcode-locking and encryption. For example, one California narcotics-trafficking organization was found to have "a security procedure, complete with an IT department, to immediately and remotely wipe all digital evidence from their cell phones." Because remote-wiping capability is widely available, individuals have used the same tactic. In addition, the threat of passcode-locking, encryption and "geofencing" technologies enable criminals to preset their phones to automatically wipe in certain circumstances. Evidence preservation problems will only get worse as mobile phone technology advances and criminals become more sophisticated. Accordingly, simply turning off the phone or putting it in a "Faraday bag" pending the issuance of a warrant will not assure the preservation of evidence. The prosecution concedes, however, that a search-incident-to-arrest should only allow the retrieval of digital files stored on the hard-drive of the cell phone itself because of Chimel's spatial limitations. Accessing remotely stored files would not be a search of the phone, but rather a search of computer servers located elsewhere. This intrinsic limitation should dispel concerns that a cell phone search will result in unlimited acquisition of remotely stored data. Citing Arizona v. Gant6, the prosecution finally argues that officers should at least have authority to search a cell phone seized incident to a lawful arrest irrespective of the Chimel justifications whenever they reasonably believe it contains evidence relevant to the crime of arrest. This limitation would prevent warrantless cell phone searches where there's no logical nexus between the cell phone and the crime of arrest, such as, for example, a drunk driving charge. But now, I'd like to hear from you. Should law enforcement be able to conduct warrantless searches of cell phones found on the person of an arrestee? Your views matter to me. Email me at james.derian@delphi.com. -------- * My term as OCBA president and possibly another chunk of our privacy. Footnotes 1 David Leon Riley v. California, No. 13-132 (petition for certiorari filed July 30, 2013, and granted Jan. 17, 2014. 2 United States v. Brima Wurie, No. 13-212 (petition for certiorari filed Aug. 15, 2013, and granted Jan. 17, 2014. 3 Chimel v. California, 395 U.S. 752 (1969). 4 United States v. Robinson, 414 U.S. 218 (1973). 5 United States v. Chadwick, 433 U.S. 1 (1977). 6 Arizona v. Gant, 556 U.S. 463 (1976). -------- James G. Derian, corporate counsel for Delphi Automotive Systems LLC, is the 81st president of the Oakland County Bar Association. Published: Mon, Jun 09, 2014

––––––––––––––––––––
 Subscribe to the Legal News!
 https://legalnews.com/Home/Subscription
Full access to public notices, articles, columns, archives, statistics, calendar and more
Day Pass Only $4.95!
One-County $80/year
Three-County & Full Pass also available