The following is an excerpt of Habeas Data , which shows how the explosive growth of surveillance technology has outpaced our understanding of the ethics, mores, and laws of privacy. Award-winning tech reporter Cyrus Farivar makes the case by taking ten historic court decisions that defined our privacy rights and matching them against the capabilities of modern technology. This particular section explores the run up to the landmark 2013 Supreme Court case, Riley v. California. In that case, the Supreme Court ruled, unanimously, that in most circumstances, police cannot search a cellphone during an arrest without a warrant. Award-winning tech reporter Cyrus Farivar makes the case by taking ten historic court decisions that defined our privacy rights and matching them against the capabilities of modern technology. This particular section explores the run up to the landmark 2013 Supreme Court case, Riley v. California. In that case, the Supreme Court ruled, unanimously, that in most circumstances, police cannot search a cellphone during an arrest without a warrant.

August 22, 2009

San Diego, California

The intersection of Euclid and Imperial avenues is fairly unremarkable. It's comprised of wide Southern California streets, with at least two lanes of traffic (more if you include the left-turn lanes) in each quadrant. On one corner is an Arco gas station, just in front of St. Rita's Catholic Church. On the northeast corner is Greene Cat Liquors, a strip mall liquor store, adjacent to Jaquin Mexican Food, which advertises $1 tacos ("w/ onion and cilantro only"). Along the southwest corner is El Real Mexican Food, a single-story green-and-white building with a small balcony. Its sandwich board advertises "5 rolled tacos—$4.25."

This was where David Leon Riley, 19, was driving very early in the morning before being pulled over by San Diego police officer Charles Dunnigan. The cop told Riley that he'd pulled him over for having expired registration tags. Dunnigan asked for Riley's driver's license, but it was expired. Dunnigan then asked Riley to step out of the car. The young man complied and started to reach for his right pocket—Dunnigan barked at him to stop. Riley tried to explain that he was merely trying to grab his cell phone (which was later found in the car) and admitted to the cop that he had been arrested previously on weapons charges. Dunnigan frisked Riley and found no weapons.

By this point, one of Dunnigan's colleagues, Officer Matthew Ruggiero, had arrived. The two cops made a crucial determination based on the colors found on Riley's person. They believed that these were the colors commonly used to identify membership in the Lincoln Park Bloods. The gang claims turf in this particular neighborhood of southeastern San Diego, squarely a historic African-American neighborhood that had been subjected to redlining decades earlier.

Dunnigan decided to arrest Riley, suspecting him of being a gang member. Then, the officers began to impound the Lexus, citing department policy. With Dunnigan standing next to Riley, Ruggiero began performing an inventory search on the car. This is a standard search where officers are allowed to conduct a cursory check as to the particular items found in the car—the list can be relied upon later after an impounded vehicle is returned. However, in this case, the inventory search unusually happened on the spot, and the Lexus was never towed.

Ruggiero began looking through the inside of the car. The officer opened the hood—a highly unusual move—where he found two handguns tucked inside socks. At that point, things started to escalate. Dunnigan grabbed Riley's phone, a Samsung SPH-M800, an early smartphone designed to compete with the first iPhone. As Dunnigan scrolled through the phone, the officer could see that all contacts in the phonebook starting with the letter "k" had a letter "c" in front of them. This, the police believed, confirmed their suspicion that Riley was a gang member: "ck" is common gang slang for "Crip Killer."

The officers took Riley downtown for booking. The two officers invited Detective Duane Malinowski, who was off-duty that day, to have a look at this new suspect. Malinowski was investigating a shooting incident that took place on August 2, 2009, near Riley's traffic stop.

But after being read his Miranda rights, Riley refused to speak. Malinowski then got ahold of Riley's phone, where he found "a lot of stuff" on the candy bar–shaped phone, including videos of street fights and what he thought was Riley's voice encouraging the fighters ("Get brackin' Blood!") and more.

A search incident to arrest is one of the well-understood exceptions to the usual warrant requirement. The idea for this is straightforward: officers taking a suspect into custody want to make sure that he or she is not going to destroy evidence or have a weapon that could be harmful to the officer.

When Riley went to trial, prosecutors introduced evidence taken from the phone searches that day. There were photos of Riley flashing what police believed to be gang signs. The government argued that this showed Riley's connection to the earlier shooting: he was charged with attempted murder, assault with a semi-automatic weapon, and more. Plus, ballistics tests of the guns found in the socks matched shell casings found at the scene of the August 2 shooting.

Riley's first trial resulted in a hung jury. And it would take nearly five years after Riley's arrest for the Supreme Court to weigh in on whether the warrantless searches of Riley's phone were unconstitutional. Along with United States v. Jones, Riley would become one of the most important Fourth Amendment Supreme Court decisions in recent years.

In January 2011, the San Diego officers' practice was enshrined by the California Supreme Court. In People v. Diaz, the Golden State's highest court found that such searches of phones incident to arrest were authorized as an exception to the warrant rule. The case dated back to 2007, when a man, Gregory Diaz, in Ventura County, California, was observed by sheriff's deputies as buying ecstasy from a police informant who was wearing a wire. Diaz' phone was later seized, and police began reading his text messages without even trying to get a warrant. He and his attorneys challenged the search, but in 2011, the California Supreme Court eventually ruled in favor of law enforcement. That ruling came over the objection of a single member of the high court, Justice Kathryn Werdegar, a Republican appointee.

"In my view, electronic communication and data-storage devices carried on the person—cellular phones, smartphones and handheld computers—are not sufficiently analogous to the clothing considered in [United States v.] Edwards or the crumpled cigarette package in [United States v.] Robinson to justify a blanket exception to the Fourth Amendment's warrant requirement," she wrote, referring to decades-old Supreme Court precedents.

Justice Werdegar was referring to the 5–4 decision in Edwards, a 1974 Supreme Court case involving the clothing of a suspected burglar that was seized and warrantlessly searched. In that case, the suspect was arrested late one night while trying to break into a post office in Lebanon, Ohio.

The next day, 10 hours after he was taken into custody, he was ordered to surrender his clothing in exchange for new clothes purchased by the jail. The clothes that he had been wearing during the burglary were taken and eventually found to contain the same type of paint chips that were found on the post office's busted window.

The Supreme Court ruled that this warrantless search was entirely appropriate even if it took 10 hours to give Edwards new clothes.

"The intrusion here was hardly a shocking one, and it cannot be said that the police acted in bad faith," Justice Potter Stewart wrote in the dissenting opinion. "The Fourth Amendment, however, was not designed to apply only to situations where the intrusion is massive and the violation of privacy shockingly flagrant."

Justice Stewart, of course, was the same justice that a young Larry Tribe had persuaded to rule in Katz' favor seven years earlier.

Robinson, a 1973 decision, revolved around a Washington, DC, man who was arrested for driving with a suspended license. During that traffic stop, which led to his arrest, Willie Robinson was patted down by a Metropolitan Police Department officer. The cop found a crumpled package of cigarettes on Robinson's person, and when the police officer opened it up, he found heroin inside—and Robinson was prosecuted accordingly. Ultimately, the Supreme Court ruled in a 6–3 decision that it was, in fact, a reasonable search.

In the summer of 2011, just a few months after the Diaz ruling had come down, Riley was tried again. He was convicted and sentenced to 15 years to life.

His only hope now rested with the US Supreme Court.