Nine months ago, in Riley v. California, 573 U.S. __, 134 S. Ct. 2473 (Jun. 25, 2014) (link to slip op.), the Supreme Court unanimously held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. An article in the March edition of The Army Lawyer addresses how this decision is likely to affect military justice, with a particular focus on CAAF’s interlocutory decision in United States v. Wicks, 73 M.J. 93 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page).
Though issued first, the Wicks decision is consistent with the Supreme Court’s decision in Riley. While the CAAF analyzed the privacy doctrine exception to the warrant requirement and the Supreme Court considered the search incident to a lawful arrest exception, both came to the same conclusion: cell phones implicate a unique privacy interest that is protected under the Fourth Amendment.
The major implications of Riley are twofold. First, the opinion rejected the application of the Supreme Court’s container search jurisprudence to cell phone searches. Instead, the Court affirmed a balancing test and held that test should weigh strongly in favor of an individual’s privacy interest when it comes to cell phones. Second, Riley introduced an unprecedented perspective on the Fourth Amendment in light of modern technology and set a new standard for courts to apply when considering technological advancements that arise in Fourth Amendment cases.
Lindsay Windsor, What Riley v. California Means for Military Justice, Army Law., March 2015, at 7, 10 (available here). Of note, the author clerks for CAAF’s Judge Stucky.
The article is a short and approachable analysis of cell phone (and, impliedly, other tech-based) privacy issues in the military. It also includes this particularly interesting analysis:
Soldiers often use their personal cell phones to communicate with other units for military purposes. Such use implicates serious security concerns, but personal privacy interests are at stake too. If the personal cell phone becomes the default work cell phone, an individual’s expectation of privacy in it may be reduced: the government’s interest in protecting sensitive information could permit a search of otherwise private communications on the personal cell phone. It is therefore in the interests of both national security and personal privacy for servicemembers to distinguish clearly their personal and professional use of government and personal electronic devices.
Windsor, supra, at 12.