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Smart Phones, Arrest Searches, and Admissibility of Evidence

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As Bill noted Wednesday, the United States Supreme Court in Riley v. California declined to extend to contemporary phones the doctrine that when a person is arrested everything on him can be searched without a warrant.

This case involves applying a two-century-old constitutional provision to technology that was nearly unimaginable even twenty years ago, much less two hundred.  The approach used in Chief Justice Roberts' unanimous opinion for the Court is to assess the degree of intrusion and balance that against government interests.  I think we should also look at the Fourth Amendment itself and see if anything is closely analogous.  The First Congress's handiwork, ratified by the requisite number of states, goes out of its way to protect "papers."  The emails stored on a modern smart phone have the same informational content as the "papers" of 1791.  It is the message, not the medium, that matters here, Marshall McLuhan notwithstanding.

The asserted justifications for searching the phone immediately without a warrant are weak.  The police can seize the phone, remove the battery, and put it in the evidence locker.  It's not going anywhere, and neither is the data, while they explain to a magistrate why they need to search it.  I have no problem with the substantive Fourth Amendment holding in this case.

But the police were not, or should not have been, the ones on trial in the case of the People of the State of California v. David Riley.  The questions to be decided in that case were whether Riley carried concealed and loaded weapons and whether he did so to benefit a criminal street gang.  Should the contents of the phone, surely admissible if the police had gotten a warrant, be excluded from evidence on the gang question simply because they did not know they needed to get one?

The Supreme Court did not say, and it was not asked to say.  But I think the question is important.
Did the police do anything wrong in the objective sense?  We now have the definitive word from the high court that a search of the smart phone under these circumstances violates the Fourth Amendment.  At the time of the search in 2009, though, it was an entirely reasonable interpretation of U.S. Supreme Court precedent to believe that this search was authorized.  Indeed, five of the seven Justices of the California Supreme Court thought so two years later.  See People v. Diaz, 51 Cal.4th 84 (2011).

Decades ago, New York high court Judge Benjamin Cardozo famously asked if the murderer should go free because the constable blundered.  To ask the question was to answer it -- of course not.  This case isn't even a blunder.  The police acted in accordance with the prevailing understanding of the law at the time. 

This case is not far removed from Davis v. United States, decided by the high court three years ago.  No valid purpose would be served by suppressing evidence obtained in a search the police reasonably believed was valid under the law in effect at the time.  As I said in my brief in that case,  "At best, the exclusionary rule is a necessary evil. Where it is not necessary, it is just plain evil."

I think we have gone far enough carving out "good faith exceptions" to the exclusionary rule.  It is high time to turn this around and say that these are not exceptions.  Instead, bad faith should be an element of a motion to exclude.  The Fourth Amendment should not be a ground for excluding evidence from a criminal trial unless the police acted in bad faith.  Admissibility should be the general rule and exclusion the exception.

Stay tuned.

1 Comment

I agree, Kent, it should be interesting to see how the California courts on remand decide the exclusionary rule question.

Davis uses that "bonding appellate precedent" language. And, as you note, there was no such precedent (at least according to California courts) as of the date of the search of Riley's cell phone. Therefore, I guess the prosecution will have to argue that Robinson filled that gap, and it was reasonable for the police in Riley to believe that their search was warranted pursuant to that case. The fact that numerous appellate courts interpreted Robinson in that manner should go a long way in establishing the reasonableness (i.e., objective good faith/lack of bad faith) of the officers' conduct in Riley.

But you raise a more fundamental point: Should the application of the good faith exception be simplified by drawing the line at bad faith conduct?

I hope you file an amicus brief in the California courts making that argument, if the opportunity presents itself. Obviously, the Court really favors bright-line, categorical rules, as is evidenced by the unanimous Riley opinion. Your proposed bad faith rule would seem to be right up their alley, albeit it is not designed for cops in the field but, rather, for judges on the bench.


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