MAUREEN CAVANAUGH: Our top story on Midday Edition, the US has given big win to privacy advocates, and to one San Diego man convicted in a shooting. It is a rare unanimous decision of the court, the court found that police need a warrant before searching through the cell phones of people they arrested. The case stems in part from the conviction of the men David Leon Riley, arrested in 2009. The ruling could affect prosecution and appeals throughout the country. I would like to welcome my guests, defense attorney Pat Ford, he represented Riley in the appeal of this case, welcome back to the show. PAT FORD: Thank you Maureen. MAUREEN CAVANAUGH: Alex Kreit is Associate Professor at Thomas Jefferson School of Law. Good to see you, Alex. ALEX KREIT: Good to see you as well. MAUREEN CAVANAUGH: Pat, this is a big win for your client, David Riley. Have you spoken with him? PAT FORD: Now, I read the opinion after 7 o'clock this morning, and the first thing I did was call the prison. It is not easy to get a phone call through to an inmate, but in this kind of circumstance they normally would. But David was unfortunately on lockdown status, everybody in his cell block was on lockdown status, for some reason. That means that they cannot take a phone call, so I asked the litigation coordinator who was also very excited to hear the news to pass a note to David in big letters saying that we won. I am confident that as we sit here now, he is really pleased. MAUREEN CAVANAUGH: He is currently serving a term of fifteen to life, is that right? PAT FORD: That is correct. MAUREEN CAVANAUGH: Can you tell us about the background of this case? What led to Riley's arrest, and the seizure of his cell phone? PAT FORD: David was stopped by the police, he was driving a car that had expired license plates. They asked to see his drivers license and they realized he was driving on a suspended license. At that point they searched his car, during the search of the car they found two guns, and it was determined later that those guns had been used in a shooting two weeks earlier, so they ultimately convicted him in this case of the crimes that were charged in that shooting, it was an attempted murder and also shooting at a vehicle charge. On top of that, the state added a gang enhancement which added the life term. So the information taken from his cell phone was used to convict him of the charged defenses as well as prove the gang enhancement. MAUREEN CAVANAUGH: What did the prosecutors say they found on his cell phone that connected him to gangs and the shooting? PAT FORD: They found a couple of photos where he was standing next to a person who is arguably a member of a gang, a couple of guys goofing around flashing gang signs in front of a car, a car that had possibly been involved in the shooting. That was a big part of it. They also found videos, these were harmless videos, boxing matches between two people that were allegedly gang members and David was in the background cheering them on. A gang detective convinced the jury or at least presented an argument to the jury that this boxing video is established dangerous gang activity or something. It was not a strong case for guilt to begin with, he was tried initially and there was a hung jury, they were not able to convict him. There were three eyewitnesses to the crime, they all looked at David and determined that he was somebody who was not involved in the shooting, so it was not a strong case. But on retrial, they were able to convict him. MAUREEN CAVANAUGH: To be clear, what the place did, after they arrested David they seized his cell phone and started to look through it without getting a warrant to see whether or not a judge had determined that they were allowed to look at the material. PAT FORD: They searched it two times. They looked at it twice, they looked at it at the scene of the arrest and they found some scribble on the screen of the phone, essentially which led them to believe that he might be a gang member, there are certain letters that they say is a code that gang members talk in that they see. But they then took the phone back to the police station where they did a more exhaustive frantic search, and it was during the forensic search that they found the photos and videos that were introduced at trial, and they did all of this without a search warrant. MAUREEN CAVANAUGH: Appealing the conviction you argue that the cell phone evidence should not have been allowed, what was your argument for that? PAT FORD: We had a weak argument in the Court of Appeal, because the State Supreme Court in 2011 determined that police could search cell phones incident to an arrest. We preserved the issue, we argued that it was still an unconstitutional search, but it was no surprise that our state Court of Appeal and later the Supreme Court rejected our claim. MAUREEN CAVANAUGH: Alex, just in terms of background, what can the police search when they arrest you? ALEX KREIT: The US Supreme Court has held for a long time that when someone is arrested the police can search the person, the things on them, their wallet, a cigarette case, that sort of thing. The area in grabbing distance, if you will. Basically the surrounding sort of area, they can look through that as well. The idea is, when you are arrested you have a lesser expectation of privacy at that point and the court says that the police need to be able to secure the scene and make sure there are no weapons preventing against the destruction of evidence. MAUREEN CAVANAUGH: In this ruling, the justices say that there is something different about smartphones, that exclude them from this kind of search, what did they say? PAT FORD: That was the issue, how to apply old doctrine that has been around for a while, that says we arrest somebody, you can look through all of the belongings that they have on their body. This new technology is really a game changer, that is what the US Supreme Court said, you are talking about smartphones or cell phones in general, you're talking about a whole different thing than looking through somebody's wallet. Anybody, I think who has a phone, can imagine if they think about what is on their own phone, the type of information and photographs for months or years, emails from the years, financial documents, banking applications, political documents, information on the search history of the web browser, all of these things. The Supreme Court said that makes cell phones categorically different from the types of things that the police used to search when they arrested somebody. MAUREEN CAVANAUGH: Before this ruling today, or state courts split about whether the police have a right to check cell phones without getting a warrant first? ALEX KREIT: Yes, that was a really big split across the country with different courts going different ways about whether, or when the police would need a warrant to search somebody cell phone incident to an arrest. This really clarifies the issue, one of the things that the court said in reaching this decision and saying that the police should get a warrant to search somebody's cell phone, they wanted a bright line rule, in response to some of the government arguments about allowing them to search phones, sometimes, not other times. The court said this will be useful rule to let the officers know. I think regardless of what one thinks of the merits either way, the next thing about this is it clears up something that had been dividing courts across the country. MAUREEN CAVANAUGH: In terms of the police and the investigators ability to investigate crimes, how difficult in a situation like David Riley's, where guns were also found in the car, would have been for the officers to get a search warrant for his phone? PAT FORD: It would not have been difficult at all, it would have been the appropriate procedure. It is our claim that the law did allow them to seize the phones, and warrants are fairly easy to get now with the increased technology, it allows officers to get a warrant almost on the spot. It would not have had any impact on their investigation if they had applied for a warrant and got it and been given direction on what they could and could not search. MAUREEN CAVANAUGH: The idea is that they did not because they did not have to? PAT FORD: Right, and they've been told based on the ruling in 2011, they are allowed to after an offense search somebody's cell phone which is a huge invasion of privacy. MAUREEN CAVANAUGH: One of the headlines to come out of this particular ruling is that it was a unanimous Supreme Court ruling, something that we rarely see these days in 5-4 decisions. It was unanimous, but Justice Scalia - - PAT FORD: It was Justice Alito. MAUREEN CAVANAUGH: Alito. He agreed with the majority, but he also wrote his own opinion, right? PAT FORD: This is not all that uncommon that the justice will agree with the results but have some additional thoughts to add to what the majority rationale was. I think what Justice Alito said I think ultimately is probably going to be more of interest to fourth amendment scholars then perhaps others, but he said look, I don't agree how the majority is characterizing the historical rationale for this exception and he went through all sorts of historical citations about the reason to be up to search somebody when they are arrested, but ultimately he said I do agree when you're talking about a cell phone you're talking about so much data, something of a different nature than what the founders could've ever intended, that I agree with the results. He did vote unanimously with the result, but he wrote because he wanted to explain some different thoughts he had about the history of the fourth amendment and the history of this particular role. MAUREEN CAVANAUGH: Alito took another path, but he got the same place. What are the implications of this ruling? ALEX KREIT: I think the broadest implication is that the Supreme Court has said in no uncertain terms that it will take a critical eye about new technology and how to apply old rules to that. That is something that I think has the potential to affect a lot of different issues than the fourth amendment. This is just one of the number of areas where the Supreme Court has an existing rule that says that the police might be able to do this or that without a warrant, and new technology is arguably a game changer. I think this ruling says pretty clearly that the Supreme Court isn't just going to blindly say because we are able to do it for cell phones with every picture you have taken for the last five years, we will do the same thing now that there are these funds. The court has said that they will reconsider old rules in light of the new technology. MAUREEN CAVANAUGH: So you're saying that this is a sign that this court may be really considering the implications of what this new technology is containing, and expanding the idea of what it means to have privacy and to be shielded from illegal search and seizure. ALEX KREIT: I think that is exactly right, the court in particular, the discussion and decision, there is a quotation that I thought was very interesting, the opinion that they were talking about when at the government arguments that this is the same thing looking to this, as looking through a cigarette pack or something like that. The court is saying that is like riding a horse is indistinguishable from flying to the moon. The court said we're talking about something very different than what we had a decade or two decades ago. I think that is a sign that the court not necessarily is always going to revise rules, but that at least it is going to be very mindful about how technology really has changed the potential for the police to invade people's privacy in searches. MAUREEN CAVANAUGH: Practically speaking, what are the implications of this ruling? How might this affect convictions, appeals, and ongoing prosecutions across the country? PAT FORD: This ruling will be applicable to every case that is currently pending on appeal right now. We are in the middle of the trial process, so that will be a lot of issues. It will impact the way that police do business at this point, basically police officers will now be instructed that when they arrest somebody, they may under certain circumstances seize the phone. At that point their instructions are in the absence of an emergency is to apply for a warrant. Then they will be told how and what the parameters of the search can be. MAUREEN CAVANAUGH: What does this mean for David Riley? Will he be getting a new trial? PAT FORD: The goal here is to get a new trial for David, and to get his convictions and the gang enhancement overturned. In order to reverse that convictions, the court has to have two findings. First they have to rule that there was a constitutional violation. That is what the Supreme Court ruled today. After that they have to address the secondary question, whether or not the violation was important or significant to the case or not. The court will go ahead and send the case back to our California Court of Appeals. I imagine they will be briefing and argument on the question of whether or not an issue of prejudice, whether or not the suppressed evidence was important in David's case. Again keeping in mind, initially there was a hung jury in the case, this was always a close case to begin with. It is our position that it will be substantially weaker without the evidence that was taken from the bad search. MAUREEN CAVANAUGH: I want to thank you both for explaining this really important ruling so well and so clearly.
In a strong defense of digital age privacy, a unanimous Supreme Court ruled Wednesday that police may not generally search the cellphones of people they arrest without first getting search warrants. The decision stems from a San Diego attempted murder case.
Cellphones are powerful devices unlike anything else police may find on someone they arrest, Chief Justice John Roberts said for the court. Because the phones contain so much information, police must get a warrant before looking through them, Roberts said.
"Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life," Roberts said.
The court chose not to extend earlier rulings that allow police to empty a suspect's pockets and examine whatever they find to ensure officers' safety and prevent the destruction of evidence.
The Obama administration and the state of California, defending the cellphone searches, said cellphones should have no greater protection from a search than anything else police find.
But the defendants in these cases, backed by civil libertarians, librarians and news media groups, argued that cellphones, especially smartphones, are increasingly powerful computers that can store troves of sensitive personal information.
In the cases decided Wednesday, the San Diego defendant carried a smartphone, while the other carried an older flip phone.
Roberts said the comparison to packages of cigarettes and other items that were at issue in the earlier cases is not apt.
A ride on horseback and a flight to the moon both "are ways of getting from point A to point B, but little else justifies lumping them together," he said.
Authorities concerned about the destruction of evidence can take steps to prevent the remote erasure of a phone's contents or the activation of encryption, Roberts said.
One exception to the warrant requirement left open by the decision is a case in which officers reasonably fear for their safety or the lives of others.
The two cases arose following arrests in San Diego and Boston.
In San Diego, police found indications of gang membership when they looked through defendant David Leon Riley's Samsung smartphone. Prosecutors used video and photographs found on the smartphone to persuade a jury to convict Riley of attempted murder and other charges. California courts rejected Riley's efforts to throw out the evidence and upheld the convictions.
The court ordered the California Supreme Court to take a new look at Riley's case.
In Boston, a federal appeals court ruled that police must have a warrant before searching arrestees' cellphones.
Police arrested Brima Wurie on suspicion of selling crack cocaine, checked the call log on his flip phone and used that information to determine where he lived. When they searched Wurie's home and had a warrant, they found crack, marijuana, a gun and ammunition. The evidence was enough to produce a conviction and a prison term of more than 20 years.
The appeals court ruled for Wurie, but left in place a drug conviction for selling cocaine near a school that did not depend on the tainted evidence. That conviction also carried a 20-year sentence. The administration appealed the court ruling because it wants to preserve the warrantless searches following arrest.
The justices upheld that ruling.
