By Joe Tash
Should police be allowed to search the smart phones of anyone they arrest without first obtaining a search warrant? That issue is at the heart of a case that a Carmel Valley attorney will soon bring before the U.S. Supreme Court.
Pat Ford has been practicing law in San Diego for three decades, and most of his work has centered on making appeals on behalf of those convicted of crimes in state and federal courts. On April 29, he will make his first appearance before the highest court in the land, on behalf of a young San Diego man convicted in a gang-related shooting.
At issue, said Ford and other legal experts, is whether the Fourth Amendment prohibition against unreasonable searches and seizures requires police officers to obtain a search warrant signed by a judge before searching through the smart phone of a person who is arrested.
Ford contends that a warrant should be required, and the outcome of the case is significant on multiple levels — it could affect how police approach searches of smart phones and other digital devices throughout the United States, and also determine whether Ford’s client, David Leon Riley, receives a new trial. Riley is currently serving a sentence of 15 years to life in state prison for his conviction on charges including shooting at an occupied vehicle, along with an enhancement for gang involvement.
“This is a good chance for the U.S. Supreme Court to examine citizens’ rights to privacy in the digital age,” said Ford, 55, who lives in Carmel Valley and maintains an office in downtown San Diego. “Technology for all its benefits is not a friend of privacy and we have to continue to balance safety and privacy interests.”
“I think it’s going to be one of the most significant cases on Fourth Amendment rights in some time,” said Alex Kreit, an associate professor at San Diego’s Thomas Jefferson Law School.
Since the 1970s, said Kreit, U.S. courts have recognized the right of police to search the “person” of an arrestee for weapons or contraband, even for an arrest on a traffic violation or other minor offense, without first obtaining a warrant. That search would include looking through the detainee’s pockets or wallet, and items in his or her immediate vicinity.
The question is whether the same rule should apply to devices such as smart phones, which contain vast amounts of deeply personal information.
A search of a smart phone “is arguably a much greater invasion of your privacy,” Kreit said. ”Someone just has to think about what’s on their own phone to really understand that.”
Ford said in Riley’s case, police could easily have obtained a warrant before examining his phone, because there was no threat to officer safety, or of destruction of evidence at the scene of the 2009 arrest in San Diego’s Lincoln Park neighborhood.
Riley was pulled over for having expired tags on his Lexus, and officers later determined his driver’s license was also expired. A search of the car before it was impounded turned up two loaded firearms. Based on text messages found on the phone and other evidence, police suspected Riley was a gang member, and they sought to connect him to a recent gang incident in which shots had been fired at an occupied vehicle, although no one was hit by the gunfire.
Photos and videos found in the phone were used against Riley during his trial, including an image of him standing in front of a vehicle believed to have been used in the shooting.
Ford said the prosecution’s case against Riley was weak, because none of the four eyewitnesses to the shooting could identify him. But circumstantial evidence, including the material from the phone, was used to convict him.
The goal of the appeal to the U.S. Supreme Court is to get a new trial for Riley, “where they would have to prove his guilt without any evidence they got from the phone,” Ford said. “We think they’d have a substantially weaker case without that evidence.”
Ford declined to discuss his thoughts on Riley’s involvement in the shooting, or his possible gang ties.
“(The case) is a statement that some things are more important than the truth,” he said. “We don’t want to live in a society where police can indiscriminately search our belongings and justify it after the fact by finding evidence of a crime.”
“We’re looking for a finding requiring the police to apply for a search warrant before they search people’s cell phones,” he said.
Ford has teamed up with a Stanford University law professor, Jeff Fisher, an experienced Supreme Court litigator who will actually present oral arguments before the high court. Ford will also attend the hearing.
Just getting the court to hear the case was a major accomplishment, because each year, the court receives tens of thousands of petitions and only accepts a couple of dozen cases, Ford said. “It’s an unbelievable coup.”
In his written brief — which has been joined by 11 supportive “friend of the court” briefs by a broad range of organizations — Ford wrote that the framers of the Constitution drafted the Fourth Amendment in response to an “odious” Colonial-era practice of soldiers rummaging through people’s personal effects and papers for any incriminating items they might find.
“The information on smart phones… reveals the thoughts, wonders and concerns of a phone’s owner …. The protection the Fourth Amendment has always afforded to such writings and other expressions should not evaporate — more than two hundred years after the Founding — simply because that information can now be reduced to electronic charges in a computer chip and carried in one’s pocket,” the brief states.