Editorial: High Court Is Swinging Pendulum Back On 4th Amendment

by Bilzin Sumberg

Fourth Amendment law is anything but static. If one surveys the jurisprudential landscape over the last 50 years, there are three amendments that the U.S. Supreme Court cannot leave alone: the First, the Fourth and the Fifth. This article concerns the Fourth Amendment and how the Supreme Court has manually swung the pendulum back to literal interpretation of securing warrants before a government search can begin.

Stepping back for a moment, for those of you who studied the Fourth Amendment back in the 1970s, it appeared that the search warrant had great meaning. Thus, a warrant was required before the government could begin searching. Over the next decades, the Fourth Amendment morphed. A different court with a different philosophy allowed the government to circumvent the warrant process under the guise of multiple exceptions. The law seemed to find ways to avoid warrants in the name of exigent circumstances, consent or just plain stop and frisk for police safety.

Over the last few years (terms), the Supreme Court has clearly gone back and adhered to the literal language of the Fourth Amendment. Riley v. U.S. is a good example of how the court now views the solemnity and sanctity of the Fourth Amendment.

Riley involved two separate defendants from two separate jurisdictions: David Riley in one case and Brima Wurie in the other. Though the cases involved separate jurisdictions, the cases involved the same issue: Can police search an individual’s cellphone without a warrant? The entire Riley court got behind Chief Justice John Roberts and stated that a warrant is required. To be sure, the court left a loophole concerning exigent circumstances, but that is the exception, not the general rule, concerning cellphones.

Reviewing the facts, police stopped David Riley for driving with an expired tag. Once stopped, the officer found that Riley has a suspended license. In a search incident to his arrest, the officer seized Riley’s cellphone. The officer checked the information on Riley’s phone and found incriminating evidence concerning Riley’s involvement in a gang shooting. Riley was charged in connection with the shooting.

Riley sought suppression of the evidence. The state trial court denied suppression and the court of appeals affirmed. Riley was convicted at trial and received a 15-year sentence.

In Brima Wurie’s case, police saw Wurie selling drugs. Police arrested him and seized two cellphones. Police traced a phone number to Wurie’s address, secured the apartment and obtained a search warrant wherein police found drugs and weapons. The federal trial judge denied Wurie’s motion to suppress. Wurie was convicted but the First Circuit reversed his conviction and determined that cellphones are distinct from other physical possessions and therefore require a warrant. The appellate court determined that the information poses a negligible threat to law enforcement.

The Supreme Court took jurisdiction of both cases and focused on the “reasonableness” of a warrantless search incident to a lawful arrest. The court reviewed its previous holdings in Chimel v. California, 395 U.S. 752 (1969), U.S. v. Robinson, 414 U.S. 218 (1973) and Arizona v. Gant, 556 U.S. 332 (2009). The court then juxtaposed the above trilogy of decisions against searching the contents of a cellphone incident to an arrest.

The court reasoned that cellphones are based on a technology that would have been inconceivable decades ago. The court went on to assess searches, “the degree to which it intrudes upon an individual’s privacy … and the degree to which it is needed for the promotion of legitimate governmental interests.” The court determined that data stored on a cellphone cannot be used to harm an arresting officer or effectuate an escape. Thus, data on a cellphone cannot endanger anyone.

The government advanced every conceivable argument like: the data is indistinguishable from other physical items, that the search promotes crime fighting, that the data will be erased remotely or even that somehow an accomplice may be detonating a bomb or a child abductor may have the child’s location on the phone. Regardless of the hypotheticals posed by the government, the court held steadfast in its holding. The court left open the exigent circumstances exception but stated that it would have to be examined on a case-by-case basis.

The court’s Riley decision falls squarely along the lines of other recent Supreme Court decisions that uphold the sanctity of the Fourth Amendment going forward. For example, in Bailey v. U.S., 133 S. Ct. 1031 (2013), the court tackled the question of whether seizing, detaining and searching a person beyond the vicinity of a premise being searched is reasonable?

In Bailey, police obtained a warrant for a gun at a residence. After a confidential informant identified Bailey leaving the residence, police followed him and stopped him a mile away. The police performed a pat down search and found keys but no gun. Although Bailey denied living at the residence, his keys opened the door of the residence where the police found a gun and drugs. The district judge denied suppression and the circuit court of appeals affirmed. The Supreme Court determined that because Bailey was a mile away from the residence and did not want to cooperate with the police, the search was illegal.

In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the Supreme Court dealt with another warrantless search issue: Does a per se exigency exist for warrantless nonconsensual blood testing in all drunk driving cases because of natural metabolizing of alcohol in the body?

In McNeely, police stopped McNeely for speeding and noticed his blurred eyes, slurred speech and the smell of alcohol. Though McNeely admitted that he had a couple of beers and failed field sobriety tests, he declined a Breathalyzer test. The officer took him immediately to a hospital and directed a technician to administer a blood test revealing a high blood alcohol level. The state trial court suppressed the evidence and the Missouri Supreme Court affirmed.

The U.S. Supreme Court determined that the warrantless blood test violated the Fourth Amendment because there was no compelling exigency, that the test did not equate to “now or never” and the officer had time to get a warrant. Hence, no per se exigency existed.

Then, in Florida v. Jardines, 133 S. Ct. 1409 (2013), the Supreme Court in a 5-4 decision, decided whether investigating with a drug-sniffing dog on a home’s porch constitutes a search under the Fourth Amendment. Here, the state trial court suppressed the evidence and the state appellate court reversed. The Florida Supreme Court quashed the appellate court and upheld the trial court.

On appeal, the U.S. Supreme Court determined that the “core” of the Fourth Amendment gave people the right to retreat to one’s home to be free from government intrusion. The privacy interest was so important, especially where the dog sniff was uninvited, that the Supreme Court determined the search as illegal.

In City of Ontario, Cailifornia v. Quon, 130 S. Ct. 2619 (2010), the Supreme Court did differentiate between a government search of a private person and a government employer search of a government employee. In Quon, Jeff Quon was an employee of the municipal police department. The employer police department handed out pagers to Quon's department. Because the pager bills were running so high, Quon's supervisor checked the texts that Quon sent.

Upon checking the texts, many of Quon's texts were not work-related and some were sexually explicit. Quon was disciplined and countered with a suit concerning violation of his Fourth Amendment rights and for violation of the Stored Communications Act. The district court granted summary judgment for the Ontario Police Department, and the circuit court reversed.

The U.S. Supreme Court determined: "Although as a general matter, warrantless searches are per se unreasonable under the 4th Amendment, there are a few specifically established and well delineated exceptions to that general rule … the special needs of the workplace justify one such exception."

In Quon, the court decided that a government employer had the right to read text messages on a pager that the employer issued to an employee and that the search was motivated by a legitimate work-related purpose. The court also stated that this type of search would be reasonable in the private employer context.

Turning back to Riley, the Supreme Court determined that cellphones are not just another technological convenience; they contain the privacies of life. Therefore, the question of what police must do before searching a seized cellphone is simple — get a warrant.

This article is reprinted with permission from Law360.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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