Some employers have had a practice of ordering employees to produce personal cell phones during an internal affairs investigation. Often, this occurs in the course of an investigation into off-duty conduct, and may or may not include misconduct allegations pertaining directly to the employee’s phone.
The Supreme Court’s June 2014 decision in Riley v. California will likely greatly change the legal landscape in the area. Riley was a criminal law case. Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang.
At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone.
By a 9-0 vote, the Supreme Court sided with Riley and suppressed the evidence from the phone. The words of the Court were particularly sweeping. The Court started with the proposition that its prior decisions on searches incident to an arrest did not neatly apply to cell phones. The Court referred to cell phones as “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.”
The Court held that the rationales behind not requiring warrants for searches incident to an arrest – the risk to officers from any weapons the suspect might have and the potential destruction of evidence – do not exist “when the search is of digital data. Cell phones place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search we have considered in the past.”
The State of California argued that a warrantless search of a cell phone was necessary because a suspect might attempt to “wipe” – either directly or remotely – the contents of the phone. The Court disagreed, commenting that “as to remote wiping, law enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves.”
In the heart of its decision, the Court showed a clear concern about how much and what kind of information is stored on cell phones: “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
“One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read – nor would they have any reason to attempt to do so.
“But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand-entry phone book, and so on. We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.
“The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information – an address, a note, a prescription, a bank statement, a video – that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.
“Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception.”
How will these principles apply to searches conducted in an internal affairs investigation? Since public employers are arms of the “State” for purposes of the Fourth Amendment, it seems clear that a practice of routinely demanding or examining cell phones as part of the internal investigation process will likely come to an end. At a minimum, employers will have to have a particularized need to examine a cell phone, and will certainly have to confine their examination to the portion of the cell phone’s memory that potentially is relevant to the investigation (stored text messages, for example, in the case of allegations of an employee sending threatening text messages). It remains to be seen whether employers will have to meet the higher standard of actually applying for and receiving a warrant to examine an employee’s personal cell phone.