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.

5 Responses to “Scholarship Saturday: What Riley v. California Means for Military Justice”

  1. The Silver Fox says:

    Best line in a recent SCOTUS opinion:  “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.”  Riley v. California, 134 S. Ct. 2473, 2495 (2014).  I would also agree with the author that Riley removed any notion that electronic devices can or should be compared to containers:  “Treating a cell phone as a container whose contents may be searched incident to arrest is a bit strained as an initial matter.”  Riley, 134 S. Ct. at 2491; but see United States v. Runyan, 275 F.3d 449, 460-61 (5th Cir. 2001).  
    My personal opinion is that Riley is a great (and correct) decision.  That said, having watched the oral argument, I did not at all expect the case to be 9-0.  Professor Fisher killed it though during oral argument; having witnessed his advocacy, it’s no surprise he got the Court to (correctly) overrule Ohio v. Roberts back in 04′.  

  2. stewie says:

    Phones today are more powerful computers than computers were in the 90s in most cases.  Thus, no reason to not treat them like computers are treated when it comes to searches.

  3. DCGoneGalt says:

    Are there any cases trailing Wicks that could flesh out Riley/Wicks further?  

  4. The Silver Fox says:

    The only published military case I know of that cites both opinions is United States v. Keefauver, 73 M.J. 846 (A. Ct. Crim. App. 2014), but that case mainly deals with “protective sweeps.”  The recent CAAF opinion in Buford briefly mentions Wicks, but provides no analysis further applying its holding.

  5. Captain Snark says:

    The last 2 paragraphs of this article are the two big takeaways (kudos to the author for ending the article with a bang).  Everyone from commanders on down to Joe are connected everyday by personal cell phones and personally issued BBs.  As a GWOT-era soldier, I can’t imagine how Army units kept accountability of their Soldiers before cell phones (accountability formations every other hour?).  So the 2 complicating factors for the Army vis-à-vis Riley and the 4th Am, 1) much day to day Army business is done by personal cell phones, and 2) unit chain of command serves both “workplace” and “GO&D/law enforcement” purposes.  The author alludes to the “reasonableness” standard of workplace inspections, but that’s based on the O’Connor v. Ortega 1987 plurality opinion that left many questions to be answered by lower federal courts.  Should be interesting.