Riley and Abandonment: Expanding Fourth Amendment Protection of Cell Phones

By Hoverman, Abigail | Northwestern University Law Review, January 1, 2017 | Go to article overview

Riley and Abandonment: Expanding Fourth Amendment Protection of Cell Phones


Hoverman, Abigail, Northwestern University Law Review


Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans "the privacies of life. " The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-get a warrant.

-Chief Justice John Roberts[dagger]

Introduction

The majority of Americans keep a cell phone on their persons at all times. In effect, a treasure trove of personal information can be uncovered in minutes, including a person's internet search history, hundreds of text messages and e-mails, photos, GPS and map history, and even bank information, dating back months and even years, creating a serious threat to privacy if these devices are opened without permission.1 Fourth Amendment jurisprudence has been slow to adapt to modern technology and to protect the vast amount of data and information people have on their cell phones that an unlawful search or seizure can uncover. In an important step towards the protection of easily accessible personal data, in 2014, the Supreme Court held in Riley v. California that officers can no longer search through cell phones during searches incident to arrest.2 The opinion articulated that cell phones are different from other objects "kept on an arrestee's person" because of the digital data they contain:

Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. . . . Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day.3

While Riley took an important step in recognizing the unique privacy threats cell phones pose, based on the same logic, special protections for these devices should be expanded to other areas of criminal procedure. This Note argues that heightened protection for cell phones should expand beyond the context of search incident to arrest to the doctrine of abandoned property. When investigating a crime or following a suspect, courts generally consider any property left behind as unprotected by the Fourth Amendment because the item's former owner lost all expectation of privacy by discarding the object.4 Just as police cannot search through a person's cell phone incident to an arrest, police should be similarly barred from opening a person's cell phone that has been left behind. Furthermore, the case law establishing the abandonment theory should not apply to cell phones because the nature of the information contained in a phone is completely different than the information that can be gleaned from trash, illegal drugs, or weapons left behind in traditional abandonment cases both in sensitivity and quantity.

This Note begins by examining foundations of the abandonment exception to the Fourth Amendment, including the test for when property should be ruled abandoned. Part II considers Riley v. California, examining why the Supreme Court determined cell phones are different and deserve heightened protections through warrants. This Part also explores how scholars have reacted to Riley, both by acknowledging the significance of the expansion of Fourth Amendment protection to include digital data and by attempting to expand this protection to other areas of the law beyond searches incident to arrest. This Note follows previous scholars who have advocated for expanded protection of personal digital devices, but unlike other scholarship, argues this protection should apply to abandoned cell phones. Part III examines how state and federal courts have treated leftbehind or abandoned cell phones just like any other tossed contraband or container.

Part IV of this Note then analyzes why the holding in Riley should expand categorical protection of cell phones to include abandoned phones and explores the implications of forbidding warrantless searches of abandoned cell phones. …

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