Riley and How to Best Address the Question of Electronic Searches

by John Yoo

I agree with yesterday’s Supreme Court decision in Riley v. California, requiring the police to get a warrant before accessing the cell phone of a criminal suspect. The Justices have struck a sensible balance between the needs of law enforcement and the power of new technology. But we should ask whether the Court is the best part of our government to make these fundamental decisions, even if we happen to agree — as here — with its bottom line in any single case.

The problem, in short, was whether cell phones should fall subject to the exception to the warrant requirement for searches incident to arrest. The Fourth Amendment declares that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probably cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In general, the Fourth Amendment requires that searches be reasonable. Warrants have served as judicial pre-approval of the reasonableness of a search. But the text makes clear that all searches do not need a warrant. One of the most important exceptions to the warrant requirement is a search “incident to arrest.” When police make an arrest, they can search immediately the person of the suspect to find any dangerous weapons and to prevent the destruction of evidence.

Think of police searching a suspect for a gun or for drugs — it would make little sense to require the police to bring the suspect all the way back to the police station and get a warrant, when the suspect in the meantime could turn the hidden gun on police or destroy hidden drug evidence. In fact, as Chief Justice Roberts observes in his majority opinion, the idea that this is an “exception” to warrant requirement is inapt, because there are many more searches incident to arrest than there are searches pursuant to a warrant.  

What makes cell phones different from guns or drugs renders their immediate discovery less urgent, more invasive, and so less reasonable. First, a cell phone search can be much more invasive of privacy, because for many it is a direct link to a storehouse of personal information. A cell phone can give access to the digital traces of a person’s entire life.  Second, cell phones are not likely to present a danger to arresting officers and, if stored properly, can be preserved intact while awaiting a judicial warrant.

My only complaint with the Court is not the outcome but the process. The rise of new technologies, such as smartphones, cloud computing, social media, big data analysis, drones, GPS, and so on, demands a re-examination of the balance between individual privacy and the government’s surveillance powers. The Court has been attempting to re-examine this line in fits and starts (it has, for example, held that police cannot use heat-detection devices to search for marijuana growers without a warrant; cannot place a GPS tracer on a car without a warrant; but can add DNA evidence to a national database without a warrant). The Justices have not pursued a consistent line, but have been haphazardly striking balances between privacy and surveillance case-by-case.

Our current Fourth Amendment law (which I think strays too far from the original understanding of the Constitution), however, depends on society’s reasonable expectation of privacy to identify a sphere free of government search. Legislatures, rather than courts, are better placed to do this. Our elected representatives can better identify the capabilities of the new technologies and strike the balance that best reflects society’s line between surveillance and privacy. Justices are isolated from technological change and the pressures on police and prosecutors. Our elected representatives can collect broader forms of information through investigations and studies and poll the wishes of the American people. The better solution to the rise of new technology is for Congress to pass a new, comprehensive law regulating electronic searches and surveillance and new technology (as it did in the late 1960s), rather than hoping that the courts will arrive at the right answers by a halting, case-by-case approach.

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