An Application and Extension of Riley v. California on Cell Phone Searches

January 6, 2015
By Hanging Out with Carl Gunn


  • The Ninth Circuit recently applied Riley v. California’s limits on cell phone searches in United States v. Camou – to (1) reject a claim that the possibility of losing data on a cell phone creates exigent circumstances justifying a warrantless search and (2) hold that cell phones are not “containers” for purposes of the automobile exception and so that exception doesn’t justify a warrantless search.
  • This suggests potential for extending Riley even further – perhaps even to undercut, limit, or overrule United States v. Cotterman, as suggested in prior posts.


You all presumably know by now about the limits the Supreme Court’s recent decision in Riley v. California, 134 S. Ct. 2473 (2014), placed on the search of cell phones under the search incident to arrest exception. A few months back, I put up a couple of posts suggesting this opinion might have some impact on the Ninth Circuit’s limited approval of laptop computer searches under the border search exception in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc). (See “Does Riley v. California Affect United States v. Cotterman?” and “Does Riley v. California Affect United States v. Cotterman Even More?” in the September 2014 link at the right.) There haven’t been any cases suggesting this possible impact of Riley yet, but the Ninth Circuit did recently issue a decision illustrating Riley’s impact in some other areas, which is worth knowing about it.

The Ninth Circuit case is United States v. Camou, No. 12-50598, 2014 WL 6980135 (9th Cir. Dec. 3. 2014). The officers there – who happened to be Border Patrol agents, but weren’t operating at the border where the border search exception would apply – arrested the defendant for alien smuggling and searched his cell phone about an hour and a half after he was arrested. The government tried to argue three Fourth Amendment exceptions – the search incident to arrest exception, the exigent circumstances exception, and the automobile exception – and the court rejected each one, relying in two instances on Riley.

First, the court held the search incident to arrest exception didn’t apply. It actually didn’t use Riley to justify this holding, even though Riley would seem directly applicable and clearly controlling. Instead, the court based its rejection of the search incident to arrest exception on the requirement that a search incident to arrest “be spatially and temporally incident to the arrest.” Camou, 2014 WL 6980135, at *3. It held this requirement wasn’t satisfied because the cell phone wasn’t searched until more than an hour after the arrest and “a string of intervening acts occurred between [the defendant’s] arrest and the search of his cell phone that make the one hour and twenty minute delay even more unreasonable.” Id. at *5. It’s a nice holding on this more general limitation on the search incident to arrest exception that’s also discussed (along withRiley and the other holdings) in Steve Kalar’s “Case ‘o The Week” blog that’s linked here.

Where the Camou opinion did use Riley is in its rejection of the other two Fourth Amendment exceptions argued by the government – the exigent circumstances exception and the automobile exception. On the exigent circumstances exception, the opinion was a simple application of Riley. The court quoted the government’s argument that exigent circumstances were created by “the volatile nature of call logs and other cell phone information with the passing of time” and held that “Rileyforecloses this argument.” Camou, 2014 WL 6980135, at *6. The court then explained how the same argument was made and rejected in Riley. See Camou, 2014 WL 6980135, at *6.

The court then extended Riley, though not in a particularly revolutionary way, in rejecting application of the automobile exception. The government’s argument that the automobile exception applied was based on the rule that the automobile exception applies to both vehicles and containers in the vehicles.See Camou, 2014 WL 6980135, at *7 (citing California v. Acevedo, 500 U.S. 565, 580 (1991) and United States v. Ross, 456 U.S. 798, 821-22 (1982)).

The premise underlying this argument – and considered by the court in Camou – is that a cell phone qualifies as a “container” for purposes of the automobile exception. The court held that this premise failed after Riley. It began by noting that Riley had expressly rejected treatment of a cell phone as a container in the search incident to arrest context:

[I]n Riley, the Supreme Court examined the definition of “container” as it would apply to cell phones and the search incident to arrest exception. The Court found:

Treating a cell phone as a container whose contents may be searched incident to arrest is a bit strained as an initial matter. But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen.

— U.S. — , — , 134 S. Ct. 2473, 2491, 189 L. Ed. 2d 430 (2014) (citation omitted).

Camou, 2014 WL 6980135, at *8. The court went on to noteRiley’s rejection of a govenment proposal to import the automobile search standard and the concern expressed by the Supreme Court that applying that standard to cell phones “would in effect give police officers unbridled discretion to rummage at will among a person’s private effects.” Camou, 2014 WL 6980135, at *8 (quoting Riley, 134 S. Ct. at 2492).

The Camou court then held that “[g]iven the Court’s extensive analysis of cell phones as ‘containers’ and cell phone searches in the vehicle context, we find no reason not to extend the reasoning in Riley from the search incident to arrest exception to the vehicle exception.” Camou, 2014 WL 6980135, at *8. It explained:

Just as “[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” so too do cell phones differ from any other object officers might find in a vehicle. [Riley, 134 S. Ct. at] 2489. Today’s cell phones are unlike any of the container examples the Supreme Court has provided in the vehicle context. Whereas luggage, boxes, bags, clothing, lunch buckets, orange crates, wrapped packages, glove compartments, and locked trunks are capable of physically “holding another object,” see [New York v.] Belton, 453 U.S. [454,] 460 n.4 [(1981)], “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Riley, 134 S. Ct. at 2488-89. In fact, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Id. at 2491 (emphasis in original).

Camou, 2014 WL 6980135, at *8.

So we have a nice application and extension of Riley here, with some nice reiteration of the privacy concerns expressed in Riley. Think about additional ways to extend it, including the suggestion in my prior posts about trying to undercut or limitCotterman.