United States v Camou: 
Warrantless Cell Phone Searches after Riley v California

2 US Const amend IV.

3 Thompson v Louisiana 469 US 17, 20 (1984) (“[W]e have consistently reaffirmed our understanding that in all cases outside the exceptions to the warrant requirement the Fourth Amendment requires the interposition of a neutral and detached magistrate between the police and the ‘persons, houses, papers, and effects’ of citizens.”).

4 A search warrant is a document issued by a judicial officer, upon finding that the police have probable cause—defined as “fair probability”—to search a specified premises, and authorizing the police to do so. Illinois v Gates 462 US 213, 246 (1983).

5 Referring to a warrantless search as an “exception” is a misnomer because the courts have recognized so many of them. Akhil R Amar, ‘Fourth Amendment First Principles’ (1994) 107 Harv L Rev 757, 762–771 (“We have now seen at least eight historical and commonsensical exceptions to the so-called warrant requirement. There are many others—but I am a lover of mercy.”). See n 9, 35, 38.

6 United States v Jones 132 S Ct 945 (2012) (concluding that installation of electronic tracking device to the defendant’s wife’s car was a Fourth Amendment search); United States v Karo 468 US 705 (1984) (finding that monitoring of a beeper in a private residence implicated the Fourth Amendment); United States v White 401 US 745 (1971) (holding that the law did not protect persons whose conversations with others are recorded and transmitted to the police).

7 Riley v California 134 S Ct 2473, 2490 (2014) (“[N]early three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower…many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate…[t]he average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.”); Orin S Kerr, ‘Searches and Seizures in a Digital World’ (2011) 119 Harv L Rev 531, 541–543 (2011) (observing that computers differ from houses in that they contain a staggering amount of data, most users do not know about and cannot control the storage of this information, and computer operating systems and programs generate and store a wealth of information about how the computer and its contents have been used).

8 Mapp v Ohio 367 US 643 (1961) (holding that evidence obtained by searches and seizures in violation of the Constitution is inadmissible in state courts).

9 Riley v California 134 S Ct 2473, 2473 (2014).

10 “Search incident to arrest” is an “exception” to the warrant requirement that allows the police to search an arrestee’s person, United States v Robinson 414 US 218 (1973). The police may search the arrestee’s reachable space if the arrestee is in her home, Chimel v California 395 US 752 (1969). The police may also search the arrestee’s car when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, and when it is reasonable to believe that evidence relevant to the crime of arrest might be found in the car, Arizona v Gant 129 S Ct 1710 (2009).

11 Riley v California 134 S Ct 2473, 2480 (2014).

12 Ibid.

13 Ibid., 2494.

14 Ibid., 2485–2486.

15 Ibid., 2486–2488 (discussing that the police can prevent remote wiping by (1) turning off the phone or removing its battery, or (2) leaving the phone powered on and placing it in an enclosure called a Faraday bag to isolate the phone from radio waves).

16 See n 9.

17 Riley v California 134 S Ct 2473, 2491 (2014).

18 Ibid., 2494 (observing that “other case-specific exceptions may still justify a warrantless search of a particular phone,” and referring to the exigency exception in particular).

19 United States v Dahl Criminal Action No. 14-382, 2014 WL 6792676 (E.D. Pa. Dec. 3, 2014) (Riley does not overrule precedent allowing warrantless search of a probationer’s cell phone based on reasonable suspicion); United States v Saboonchi 48 F Supp 3d 815 (D. Md. 2014) (Riley does not alter the reasonable suspicion standard for the border search of a smartphone and flashdrive).

20 United States v Camou 773 F 3d 932 (9th Cir. 2014).

21 Ibid., 935.

22 Ibid.

23 Ibid.

24 Ibid., 936. There was arguably probable cause to search Camou’s cell phone because his girlfriend informed Border Patrol that before picking up the undocumented immigrant, Camou received a phone call from someone who went by the alias “Mother Teresa,” and during Camou’s girlfriend’s interview, Camou’s cell phone rang several times, displaying a phone number on the screen which was identified as belonging to “Mother Teresa.” ibid.

25 Ibid.

26 Ibid.

27 Ibid.

28 18 USC §2252(a)(4)(B) (2012).

29 United States v Camou 773 F 3d 932, 936 (9th Cir. 2014).

30 Ibid.

31 The “good faith exception” is an exception to the general rule that evidence is excluded if the police obtained it in violation of the Fourth Amendment. It applies where the police objectively relied on the error in good faith. United States v Leon 468 US 897 (1984). The good faith exception applied when the error leading to the Fourth Amendment violation was attributable to a non-police actor—for instance, a magistrate, ibid.; the legislature, Illinois v Krull 480 US 340 (1987); or a court clerk, Arizona v Evans 514 US 1 (1995).

32 Like the “good faith exception”, the “inevitable discovery exception” is an exception to the general rule that evidence is excluded if the police obtained it in violation of the Fourth Amendment. It applies where evidence would have been found anyway even if there were no Fourth Amendment violation. Nix v Williams 467 US 431 (1984).

33 Ibid.

34 Ibid., 937.

35 Ibid., 939.

36 Like SIA, “exigency” is an “exception” to the warrant requirement that allows the police to conduct a search without getting a warrant where there was not enough time to do so, as in cases involving fleeing suspects, Warden v Hayden 387 US 294 (2009); potential evidence loss, United States v Elkins 300 F 3d 638 (6th Cir. 2002); or threat of serious injury, Brigham City v Stuart 547 US 398 (2006).

37 Ibid., 941.

38 Ibid.

39 Like SIA and exigency, the “automobile exception” is an “exception” to the warrant requirement. The police may conduct a warrantless search of a car where there is probable cause to believe that evidence is contained in it. California v Acevedo 500 US 565 (1991).

40 Ibid., 943.

41 United States v Camou 773 F 3d 932, 944 (9th Cir. 2014).

42 Ibid., 945.

43 See n 36.

44 Text to n 14.

44 United States v Camou 773 F.3d 932, 941 (9th Cir. 2014).

45 Mincey v Arizona 437 US 385 (1978).

46 Text to n 4. In practice, courts have been more lenient in their interpretation of exigency, allowing officers to conduct a protective sweep where they “reasonably believed that a shooting victim or an additional armed suspect might be in the house.” United States v Goodrich 739 F.3d 1091, 1096 (8th Cir. 2014).

47 See n 4.

48 A search warrant is favored because it offers a number of police power-constraining safeguards. To obtain a warrant, the police must demonstrate probable cause, under oath and affirmation, to a magistrate. The particularity requirement limits the legitimate scope of searches spatially and temporally. Once a warrant is obtained, there is a further safeguard that a warrant must be executed in a constitutionally acceptable way. Wilson v Layne 526 US 603 (1999); Wilson v Arkansas 514 US 927 (1995).

49 I am grateful to Judge Livingston for this example.

50 United States v Camou 773 F.3d 932, 936 (9th Cir. 2014).

51 For examples of how photographs have been used to incriminate defendants, Nina Golgowski, ‘London Drug Dealers Sentenced after Being Caught with Boastful Cellphone Photos of Drugs, Cash’ New York Daily News (New York, 29 Oct. 2014) <http://www.nydailynews.com/news/world/london-drug-dealers-trophy-photos-drugs-cashphones-article-1.1992100> accessed 13 May 2015; Mark Duell, ‘Busted! Drug Smuggler Caught After He Spelled His Nickname in Cocaine while Posing for Mobile Phone Photograph’ Daily Mail (London, 26 May 2013) <http://www.dailymail.co.uk/news/article-2331155/Drug-smuggler-spelt-nickname-cocaine-10-man-British-gang-jailed-total-92-years.html> accessed 13 May 2015.

52 Smugglers have also used text messages to signal the presence of Border Patrol to others. Marc Lacey, ‘Smugglers Guide Illegal Immigrants with Cues via Cellphone’ New York Times (New York, 9 May 2011) <http://www.nytimes.com/2011/05/09/us/09coyotes.html?_r=0> accessed 13 May 2015.

53 Jim Dwyer, ‘It’s Not Just Drug Dealers Who Buy Prepaid Phones’ New York Times (New York, 28 May 2010) <http://www.nytimes.com/2010/05/30/nyregion/30about.html> accessed 13 May 2015.

54 Associated Press, ‘Lawmakers Seek to Crack Down on Prepaid Cell Phones that Abet Criminal and Terror Suspects’ Fox News (New York, 8 June 2010) <http://www.foxnews.com/us/2010/06/08/lawmakers-crack-prepaid-cell-phones-abet-criminal-terror-suspects/> accessed 13 May 2015. cf Justin Peters, Can Disposable “Burner” Cellphones Protect You From Government Surveillance?, Slate (New York, 7 June 2013) <http://www.slate.com/blogs/crime/2013/06/07/verizon_nsa_scandal_can_disposable_burner_cell_phones_protect_you_from_government.html> accessed 13 May 2015.

55 Mincey v Arizona 437 US 385 (1978).

56 United States v Elkins 300 F.3d 638 (6th Cir. 2002).

57 Text to n 14.

58 United States v Camou 773 F.3d 932, 941 (9th Cir. 2014).

59 Kerr, ‘Searches and Seizures in a Digital World’ (n 6) 574–576.

60 Riley v California 134 S. Ct. 2473, 2485 (2014).

61 United States v Camou 773 F.3d 932, 941 (9th Cir. 2014).

62 State v Carroll 778 N.W.2d 1, 12 (Wis. 2010).

63 Because there was no reference to the quantity of images perused by the police in Carroll’s holding at all, this interpretation of Camou’s holding is least probable.

64 Carroll v United States 267 US 132 (1925).

65 California v Carney 471 US 386 (1985).

66 Wyoming v Houghton 526 US 295 (1999); California v Acevedo 500 US 565, 579 (1991).

67 California v Acevedo 500 US 565, 581 (1991).

68 United States v Camou 773 F.3d 932, 942 (9th Cir. 2014).

69 Ibid.

70 Riley v California 134 S. Ct. 2473, 2491 (2014).

71 Text to n 6.

72 New York v Belton 453 US 454, 460 (1981).

73 See n 4.

74 United States v Camou 773 F.3d 932, 942 (9th Cir. 2014).

75 Text to nn 51–52.

76 Ibid., 941.

77 Ibid., 942.

78 Riley v California 134 S. Ct. 2473, 2493–2495 (2014).

79 United States v Camou 773 F.3d 932, 941–943 (9th Cir. 2014).

80 Herring v United States 555 US 135 (2009).

81 Ibid., 144.

82 United States v Camou 773 F.3d 932, 945 (9th Cir. 2014).

83 Ibid.

84 United States v Spears 31 F. Supp. 3d 869, 874 (N.D. Tex. 2014); People v Rodriguez A134782 & A138665, 2014 WL 5509829, at *8 (Cal. App. 1st. Nov. 3, 2014); People v Allen No. B245581, 2014 WL 5469894, at *6 (Cal. App. 2nd. Oct. 29, 2014). cf Herring v United States 555 US 135, 152 (2009) (Ginsburg, J., dissenting); United States v Stephens 764 F.3d 327 (4th Cir. 2014) (Thacker, J., dissenting).

85 Herring v United States 555 US 135, 147 (2009).

86 United States v Camou 773 F.3d 932, 945 (9th Cir. 2014).

87 Herring v United States 555 US 135, 144–147 (2009).

88 Note, ‘Toward a General Good Faith Exception’ (2013) 127 Harv L Rev 773; Laura E. Collins, ‘Davis v United States: Expanding the Good Faith Exception to the Exclusionary Rule to Objective Reliance on Binding Appellate Precedent Presents Too Many Threats to Constitutional Protections’ (2012) 81 Miss LJ 163, 192.

89 Ibid., 944–945.

90 Davis v United States 131 S. Ct. 2419 (2011).

91 New York v Belton 453 US 454 (1981).

92 Ibid., 459–460.

93 See n 4.

94 Davis v United States 131 S. Ct. 2419, 2423–2424 (2011).

95 United States v Camou 773 F.3d 932, 944–945 (9th Cir. 2014).

96 Orin S. Kerr, ‘Cell Phone Exempt from the Automobile Search Exception, Ninth Circuit Rules’ (The Volokh Conspiracy, 11 Dec. 2014) <http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/12/11/cell-phones-exempt-from-the-automobile-search-exception-ninth-circuit-rules/> accessed 13 May 2015.

97 United States v Camou 773 F.3d 932, 935–936 (9th Cir. 2014).

98 See Introduction.

99 cf United States v McCane 573 F.3d 1037, 1045 (10th Cir. 2009); United States v Clark 29 F. Supp. 3d 1131, 1137 (E.D. Tenn. 2014); United States v Loera No. CR 13-1876 JB, 2014 WL 5859072, at *79 (D.N.M. Oct. 20, 2014); United States v Lopez 895 F. Supp. 2d 592, 605 (D. Del. 2012); Orin S. Kerr, ‘Lower Court Interpretations of Davis v United States 131 S. Ct. 2419 (2011)’ (The Volokh Conspiracy, 14 Aug. 2013) <http://volokh.com/2013/08/14/lower-court-interpretations-of-davis-v-united-states-131-s-ct-2419-2011/> accessed 13 May 2015.

100 United States v Martin 712 F.3d 1080, 1082 (7th Cir. 2013).(“We reject the government’s

invitation to allow police officers to rely on a diffuse notion of the weight of authority around

the country, especially where that amorphous opinion turns out to be incorrect in the Supreme

Court’s eyes.”).

101 United States v Katzin 769 F 3d 163, 182 (3d Cir. 2014) (finding that the good faith exception applied because “[t]he constellation of circumstances that appeared to authorize [police] conduct included well settled principles of Fourth Amendment law as articulated by the Supreme Court, a near-unanimity of circuit courts applying these principles to the same conduct, and the advice of an AUSA pursuant to a DOJ-wide policy”.).

102 Davis v United States 131 S Ct 2419, 2439 (2011) (“But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous ‘binding precedent.’ Nor is an officer more culpable where circuit precedent is simply suggestive rather than ‘binding,’ where it only describes how to treat roughly analogous instances, or where it just does not exist”. (Breyer, J., dissenting).

103 United States v Salazar 598 Fed Appx 490 (9th Cir. 2015).

104 ibid., 491.

105 Vito Bruno v Donat No. 3:09–cv–00165–RCJ–VPC, 2015 WL 1320925, at *15 (D. Nev. Mar. 24, 2015).

106 ibid., *15.

107 State v Meitler 347 P 3d 670 (Kan. Ct. App. 2015).

108 ibid., *11.

109 United States v Washington No. 2:14–CR–262 JCM (GWF), 2015 WL 1540486 (D. Nev. Apr. 2, 2015).

110 ibid., *15.

111 United States v Raymonda 780 F 3d 105, 125 (2d Cir. 2015).

112 Blair v United States No. 12–CF–1351, 2015 WL 2120329 (D.C. May 7, 2015).

113 ibid., *6 n.22. Even Professor LaFave’s treatise, on which the Blair court relies, admits that his interpretations of what Herring means have their difficulties. Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (first published 1978, 5th edn, Thomson Reuters/West 2012) 299.

114 State v Thomas No. 14AP–185, 2015 WL 2191107 (Ohio Ct. App. May 12, 2015).

115 ibid., *11–12.

116 United States v Alonso-Castaneda No. CR–11–4067–TUC–DCB (BGM), 2015 WL 1711989 (D. Ariz. Apr. 15, 2015).

117 ibid., *7 (“Agent Kouris testified that he looked at the cellular telephone for text messages or calls relevant to the crime, or incriminating photographs of drugs, money, or weapons…This goes beyond any arguably permissible search to prevent the loss of call data”.).

118 ibid., (“The Ninth Circuit Court of Appeals, however, has explicitly held ‘that cell phones are not containers for purposes of the vehicle exception.’ Accordingly, the search of Defendant Alonso-Castaneda’s cell phone cannot be justified under the vehicle exception to the warrant requirement”.).

119 ibid., *8 (“The Ninth Circuit Court of Appeals squarely addressed and rejected the Government’s argument in this case. Agent Kouris did not rely ‘on anyone or anything in conducting his search of [Defendant Alonso–Castaneda’s] cell phone, let alone that any reliance was reasonable.’ As such, the good faith exception is inapplicable to this case”.).

120 Samuel Beutler, ‘The New World of Mobile Communication: Redefining the Scope of Warrantless Cell Phone Searches Incident to Arrest’ (2013) 15 Vand J Ent & Tech L 375, 401 (proposing a function-based rule under which “a law enforcement officer would be allowed to search an arrestee’s call log, text messages, and address book, but nothing more”.).

121 Patrick Brown, ‘Searches of Cell Phones Incident to Arrest: Overview of the Law as it Stands and a New Path Forward’ (2014) 27 Harv J L & Tech 563, 580 (“[I]t seems unclear under Beutler’s proposed rule why…other cell phone contents with clear physical analogues like notes or photographs would not be [searchable]. Moreover, text message contents are a close analogue to the telephone conversations protected under Smith and should merit similar protections”.). Albert Alschuler, ‘Bright Line Fever and the Fourth Amendment’ (1984) 45 U Pitt L Rev 227 (concluding that having too many categorical rules in Fourth Amendment law has led to incomprehensibility).

122 Text to n 6.

123 William J Stuntz, ‘Race, Class, and Drugs’ (1998) 97 Colum L Rev 1795, 1821 (arguing that police investigations are ordinarily constrained by limited resources and time); Adam Gershowitz, ‘The iPhone Meets the Fourth Amendment’ (2008) 56 UCLA L Rev 27 (“[N]ew technology inverts the typical state of affairs because it is the individual, not the police officer, who has the new technology…unlike flyovers or costly thermal imaging devices, the technology is everywhere”.).

124 Fernandez v California 134 S Ct 1126, 1142 (2014) (Ginsburg, J., dissenting).

125 United States v Burgess 576 F 3d 1078, 1090 (10th Cir. 2009) (considering but ultimately not reaching a conclusion on the issue because “[i]nteresting as the issue may be, we need not now resolve it because the search of Burgess’ hard drives was authorized by a warrant”.).

126 Marty Koresawa, ‘Pay Phone Protections in a Smartphone Society: The Need to Restrict Searches of Modern Technology Incident to Arrest’ (2012) 45 Loy LA L Rev 1351, 1387–1388 (concluding that cell phones should not be treated as containers).

127 Elizabeth E Joh, ‘Discretionless Policing: Technology and the Fourth Amendment’ (2007) 95 Calif L Rev 199, 206 (“[D]iscretion in law enforcement is usually exercised covertly and with minimal oversight”.). Illya Lichtenberg, ‘Police Discretion and Traffic Enforcement’ (2003) 50 Clev St L Rev 425 (observing that Whren gives the police, in effect, “unbridled discretion to stop any motorist” since “virtually every motorist is violating the law”).

128 Riley v California 134 S Ct 2473, 2497 (2014) (observing that “the Court’s broad holding favors information in digital form over information in hard-copy form…[which] leads to anomalies,” but joins the holding of the Court because he “do[es] not see a workable alternative”) (Alito, J., concurring).

129 Text to n 6.

130 Text to n 84.

131 Text to n 102.

N/A