251
Fourth Amendment — Search and Seizure —
Searching Cell Phones Incident to Arrest — Riley v. California
To enforce the Fourth Amendment’s prohibition on unreasonable
searches, the Supreme Court has traditionally prohibited warrantless
searches “subject only to a few specifically established and well-
delineated exceptions.”
1
However, the Court has in recent years increas-
ingly broadened these exceptions to the mounting concern of privacy ad-
vocates.
2
Last Term, in Riley v. California,
3
the Court ostensibly broke
from this trend when it examined whether one exception — searches
incident to custodial arrest — applied to the digital contents of cell
phones. After weighing the government’s minimal interests in these
searches against the unique privacy interests at stake, the Court de-
clined to extend the search-incident-to-arrest exception and held in-
stead “that officers must generally secure a warrant before conducting
such a search.”
4
Although privacy advocates applauded Riley for en-
dorsing a rule that protects digital privacy, the Riley Court relied un-
necessarily on a reasonableness balancing test borrowed from other re-
cent Fourth Amendment cases. In doing so, it signaled the continued
rise of a Fourth Amendment mode of analysis that may not protect pri-
vacy as much in the future.
In Riley, the Court considered two cases presenting “a common
question.”
5
In the first case, a San Diego police officer arrested David
Riley after discovering firearms stashed in a sock under his car’s
hood.
6
While searching Riley incident to his arrest, an officer found
evidence of Riley’s association with the “Bloods” street gang.
7
Suspi-
cions aroused, the police seized and searched Riley’s smart phone
without a warrant, uncovering further evidence of gang ties.
8
They
also discovered records that placed Riley’s phone at a shooting three
weeks earlier.
9
The trial court judge denied a motion to suppress after
finding that the search fell within the scope of the search-incident-to-
arrest exception.
10
Riley was convicted of assault with a semiautomat-
ic firearm, shooting at an occupied vehicle, and attempted murder.
11
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1
Katz v. United States, 389 U.S. 347, 357 (1967).
2
See, e.g., Erin Murphy, The Supreme Court, 2012 Term — Comment: License, Registration,
Cheek Swab: DNA Testing and the Divided Court, 127 H
ARV
. L. R
EV
. 161, 183–91 (2013).
3
134 S. Ct. 2473 (2014).
4
Id. at 2485.
5
Id. at 2480.
6
People v. Riley, No. D059840, 2013 WL 475242, at *1 (Cal. Ct. App. Feb. 8, 2013).
7
See Riley, 134 S. Ct. at 2480.
8
See id.
9
See Riley, 2013 WL 475242, at *1–2.
10
See id. at *3.
11
Id. at *1.
252 HARVARD LAW REVIEW [Vol. 128:251
The California Court of Appeal affirmed. In two paragraphs,
Judge McDonald disposed of Riley’s cell phone search claims on the
basis of the California Supreme Court’s decision in People v. Diaz,
12
which held that “a warrantless search of the text message folder of a
cell phone” taken from a person during his arrest was constitutional
under the search-incident-to-arrest exception.
13
The Riley panel agreed
with the trial court that Diaz controlled.
14
Over half a decade earlier and 2,500 miles away, Brima Wurie was
arrested shortly after consummating a drug deal outside a “Lil Peach”
convenience store.
15
After taking Wurie’s cell phone, officers observed
several missed calls from “my house.”
16
Without a warrant, the officers
flipped the phone open and jotted down the caller’s number.
17
After
tracking the number to an apartment, the officers executed a search
warrant and found a drug dealer’s bonanza: the “hidden mother cache”
included drugs, a gun, and cash.
18
Wurie was charged with distribution
of crack cocaine, possession of crack cocaine with intent to distribute,
and felony possession of a firearm and ammunition.
19
After his motion
to suppress was denied because the cell phone search occurred incident
to his arrest, Wurie was convicted on all counts.
20
The First Circuit reversed the denial of Wurie’s motion to suppress
and vacated his conviction.
21
Writing for a divided panel, Judge Stahl
22
held that the digital contents of a cell phone cannot be searched incident
to arrest.
23
He began by examining the rationales for the exception,
which the Court in Chimel v. California
24
had established as protecting
officers from dangerous weapons and preventing the destruction of evi-
dence.
25
Judge Stahl reasoned that the case “turn[ed] on whether the
government can demonstrate that warrantless cell phone searches, as a
category, fall within the boundaries laid out in Chimel.”
26
But the gov-
ernment did not claim that officer safety was at issue, and its concerns
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
12
244 P. 3d 501 (Cal. 2011).
13
Id. at 502.
14
Riley, 2013 WL 475242, at *6.
15
See United States v. Wurie, 612 F. Supp. 2d 104, 106 (D. Mass. 2009).
16
Id. (internal quotation marks omitted).
17
Id.
18
Id. at 107.
19
Id. at 105.
20
Id. at 109–11.
21
See United States v. Wurie, 728 F.3d 1, 1 (1st Cir. 2013).
22
Judge Stahl was joined by Judge Lipez. Dissenting, Judge Howard argued that Wurie’s
case “fit[] easily within existing precedent” because the police could have unquestionably seized
the information’s physical analogue. Id. at 16 (Howard, J., dissenting).
23
Id. at 12–13 (majority opinion).
24
395 U.S. 752 (1969).
25
See id. at 762–63.
26
Wurie, 728 F.3d at 7.
2014] THE SUPREME COURT — LEADING CASES 253
about evidence destruction were overblown.
27
As a result, “such a
slight and truly theoretical risk” was “insufficient” to justify warrant-
less cell phone searches, especially when “[w]eighed against the signifi-
cant privacy implications.”
28
The Supreme Court reversed the California Court of Appeal in Riley
and affirmed the First Circuit in Wurie.
29
Writing for the Court, Chief
Justice Roberts
30
held that the “answer to the question of what police
must do before searching a cell phone seized incident to an arrest
is . . . simple — get a warrant.”
31
To assess the reasonableness of this category of searches, the Court
conducted a balancing analysis. First, it examined the government’s
interests and found them wanting. The Court openly acknowledged
that in United States v. Robinson,
32
it had rejected case-by-case analy-
sis of whether the two Chimel rationales were present, but the Riley
Court explained that it was instead examining a “particular category of
effects”: cell phones’ digital data.
33
Starting with officer safety, Chief
Justice Roberts noted that digital content — unlike physical objects —
could not directly endanger the police.
34
Having dispatched with the
first Chimel rationale, Chief Justice Roberts turned to the second: evi-
dence preservation. The government had identified “two types of evi-
dence destruction unique to digital data — remote wiping and data
encryption.”
35
The Court dismissed both concerns: neither problem
was “prevalent,”
36
and each could be addressed through other means.
37
Chief Justice Roberts then turned to the other half of the scale: the
defendants’ privacy interests. While an arrestee has diminished privacy
interests, that “does not mean that the Fourth Amendment falls out
of the picture entirely.”
38
Where cell phones are concerned, privacy
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
27
See id. at 10–11.
28
Id. at 11.
29
Riley, 134 S. Ct. at 2495.
30
Chief Justice Roberts was joined by every member of the Court save for Justice Alito.
31
Riley, 134 S. Ct. at 2495. Riley did not address “the question whether the collection or in-
spection of aggregated digital information amounts to a search under other circumstances.” Id. at
2489 n.1. The Court thus gingerly skirted the legal morass posed by the NSA’s metadata pro-
grams — for now. See Tim Edgar, A Failure of Protocol, L
AWFARE
(June 25, 2014, 7:48 PM),
http://www.lawfareblog.com/2014/06/a-failure-of-protocol [http://perma.cc/742M-9MUL].
32
414 U.S. 218 (1973).
33
Riley, 134 S. Ct. at 2485.
34
See id. Similarly, there was no reason to believe that cell phones regularly alerted officers to
the impending arrival of the arrestee’s confederates. See id.
35
Id. at 2486.
36
Id.
37
See id. at 2487–88. For example, police could impede remote wiping by either turning the
phone off or isolating it from radio waves. Id. at 2487. And in emergencies, Chief Justice Roberts
advised that “there remain more targeted ways to address” the problem — by, for example, rely-
ing on the exigency exception to the warrant requirement. Id.
38
Id. at 2488.
254 HARVARD LAW REVIEW [Vol. 128:251
interests are at their apogee: Quantitatively, cell phones have an “im-
mense storage capacity” that houses a vast array of information
moored far into the owner’s past.
39
Qualitatively, cell phones may re-
veal “detailed information about all aspects of a person’s life” through
browsing history, geolocation data, and apps.
40
Together, these factors
belied the government’s assertion that searching cell phone data was
“materially indistinguishable” from searching physical items.
41
Finally, the Riley Court rejected a series of narrower holdings pro-
posed by the government. First, the government had urged the Court
to import a rule from Arizona v. Gant
42
that permitted “a warrantless
search of an arrestee’s cell phone whenever it is reasonable to believe
that the phone contains evidence of the crime of arrest.”
43
But the
Gant standard would have “no practical limit at all” in the cell phone
context due to the quantitative and qualitative factors that made cell
phones repositories of individuals’ private lives.
44
Alternatively, the
government proposed an “analogue test” that would allow officers to
search “cell phone data if they could have obtained the same infor-
mation from a pre-digital counterpart.”
45
But this test also lacked real
limits, given the expansive functionality of most cell phones.
46
In a brief concurrence in part, Justice Alito questioned the histori-
cal legitimacy of Chimel’s twin rationales.
47
He argued that the ra-
tionales could not “explain the rule’s well-recognized scope,”
48
and
suggested that the search-incident-to-arrest exception might also rest
on “the need to obtain probative evidence.”
49
Nevertheless, Justice
Alito accepted the majority’s rule because “we should not mechanically
apply the rule used in the predigital era to the search of a cell
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
39
Id. at 2489.
40
Id. at 2490. Complicating things further, cell phones store much of their data remotely, and
police officers may not be able to limit their search to locally stored information, as the govern-
ment conceded was necessary. See id. at 2491.
41
Brief for the United States at 26, Riley, 134 S. Ct. 2473 (No. 13-212). Chief Justice Roberts
retorted: “That is like saying a ride on horseback is materially indistinguishable from a flight to
the moon.” Riley, 134 S. Ct. at 2488.
42
556 U.S. 332 (2009).
43
Riley, 134 S. Ct. at 2492.
44
Id. Given this reality, “[i]t would be a particularly inexperienced or unimaginative law en-
forcement officer who could not come up with several reasons to suppose evidence of just about
any crime could be found on a cell phone.” Id. The same lack of “meaningful constraints” also
proved fatal to another proposed rule that limited the officer’s search to “those areas of the phone
where an officer reasonably believes that information relevant to the crime, the arrestee’s identity,
or officer safety will be discovered.” Id.
45
Id. at 2493.
46
Id.
47
See id. at 2495–96 (Alito, J., concurring in part and concurring in the judgment).
48
Id. at 2496.
49
Id. at 2495.
2014] THE SUPREME COURT — LEADING CASES 255
phone.”
50
That said, Justice Alito also indicated that he “would recon-
sider the question presented here if either Congress or state legisla-
tures . . . enact legislation that draws reasonable distinctions.”
51
In its immediate aftermath, Riley was greeted with near-universal
praise for its pro-privacy rule. But the Court reached this holding only
by departing from search-incident-to-arrest precedent. In particular, it
ventured beyond the most simple basis for a pro-privacy rule: recogniz-
ing the yawning chasm between cell phone searches and Chimel’s ra-
tionales. While the Court did acknowledge this inconsistency, it cou-
pled that explanation with an analysis of privacy interests. A relative
stranger to search-incident-to-arrest doctrine, this balancing approach
did not spawn serious mischief in Riley but may portend less privacy-
protective rules when applied to other cases challenging the constitu-
tionality of warrantless searches and seizures. Indeed, the Court has
used a similar balancing approach to issue several less pro-privacy
opinions in recent years. Riley may have set forth a categorical rule
only because of intuitively appealing privacy interests and want of a
more moderate alternative. Accordingly, Riley likely does not augur a
watershed turn toward privacy, and instead stands more as a testament
to the Court’s increasing willingness to determine Fourth Amendment
protections through an indeterminate reasonableness test.
Upon its release, Riley was quickly praised as “a sweeping victory
for privacy rights.”
52
Commentators suggested that the Court had “en-
tered the digital age and fundamentally changed how the Constitution
protects our privacy.”
53
In particular, observers commended the “sim-
ple and blunt” rule that “seemingly left no wiggle room for future
cases” — a stark departure from the Court’s usually muddled Fourth
Amendment jurisprudence.
54
In part for this reason, analysts conclud-
ed that Riley would likely have far-flung consequences.
55
One scholar
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
50
Id. at 2496.
51
Id. at 2497.
52
Adam Liptak, Major Ruling Shields Privacy of Cellphones, N.Y. T
IMES
, June 25, 2014, http://
www.nytimes.com/2014/06/26/us/supreme-court-cellphones-search-privacy.html [http://perma.cc/W7R4
-AFPT].
53
Stephen Vladeck, How the Supreme Court Changed America This Year, P
OLITICO
M
AGA-
ZINE
(July 1, 2014), h t t p : / / w w w . p o l i t i c o . c o m / m a g a z i n e / s t o r y / 2 0 1 4 / 0 7 / h o w - t h e - s u p r e m e - c o u r t
-changed-america-this-year-108497.html [http://perma.cc/4KU4-CXCC]; see also, e.g., Richard Re,
Symposium: Inaugurating the Digital Fourth Amendment, SCOTUS
BLOG
(June 26, 2014, 12:37
PM), http://www.scotusblog.com/2014/06/symposium-inaugurating-the-digital-fourth-amendment
[http://perma.cc/LCK8-3W96] (heralding “the inauguration of a new era”).
54
Adam Gershowitz, Symposium: Surprising Unanimity, Even More Surprising Clarity,
SCOTUS
BLOG
(June 26, 2014, 11:02 AM), http://www.scotusblog.com/2014/06/symposium
-surprising-unanimity-even-more-surprising-clarity [http://perma.cc/Y9T4-MDNV].
55
See Marc Rotenberg & Alan Butler, Symposium: In Riley v. California, A Unanimous Su-
preme Court Sets Out Fourth Amendment for Digital Age, SCOTUS
BLOG
(June 26, 2014, 6:07
PM), h t t p : / / w w w . s c o t u s b l o g . c o m / 2 0 1 4 / 0 6 / s y m p o s i u m - i n - r i l e y - v - c a l i f o r n i a - a - u n a n i m o u s - s u p r e m e
256 HARVARD LAW REVIEW [Vol. 128:251
declared: “Riley is the privacy gift that keeps on giving.”
56
These paeans laud Riley’s outcome but miss its unusual reasoning.
The Riley Court could have arrived at the same rule using the simpler
path that Chimel provided. Chimel established two rationales for
searches incident to arrest: officer safety and evidence preservation.
57
But as Riley itself showed, neither rationale “has much force with re-
spect to digital content on cell phones.”
58
This should have been
enough: when “both justifications for the search-incident-to-arrest ex-
ception are absent[,] . . . the rule does not apply.”
59
But rather than
stop there, the Riley Court plowed forward and engaged in what one
scholar aptly described as “a rather unusual excursus.”
60
Importing an
element foreign to its jurisprudence in this area, the Court held that
the search-incident-to-arrest exception rests not only on government
interests, “but also on an arrestee’s reduced privacy interests.”
61
Ac-
cordingly, the Court balanced the government’s attenuated interests
against any intrusion into privacy occasioned by a cell phone search.
This sort of “reasonableness balancing” barely figures in search-
incident-to-arrest precedent. The Court’s seminal cases naturally
stood against the backdrop of individual privacy, but until recently,
62
the Court fixed the scope of the search-incident-to-arrest exception
without regard to the degree to which privacy was affected.
63
Take Chimel. The Riley Court suggested that the police needed a
warrant in Chimel “[b]ecause a search of the arrestee’s entire house
was a substantial invasion beyond the arrest itself.”
64
But the Chimel
Court expressly disclaimed the “unconfined analysis”
65
of whether it
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
-court-sets-out-fourth-amendment-for-digital-age [http://perma.cc/X4WE-QH8G] (foreseeing con-
sequences for “the NSA’s bulk record collection program, access to cloud-based data, and the
third-party doctrine”). More sober observers cautioned that “it would be triumphalism of the
most foolish and shortsighted variety to conclude that new technology brings out the best in the
Supreme Court,” but even they could not resist hailing the decision as “a landmark in the protec-
tion of personal data.” Noah Feldman, Justices Don’t Want Their Smartphones Searched,
B
LOOMBERG
V
IEW
(June 25, 2014, 11:24 AM), http://www.bloombergview.com/articles/2014-06
-25/justices-don-t-want-their-smartphones-searched [http://perma.cc/YML3-C57M].
56
Re, supra note 53.
57
Chimel v. California, 395 U.S. 752, 762–63 (1969).
58
Riley, 134 S. Ct. at 2484.
59
Arizona v. Gant, 556 U.S. 332, 339 (2009). Or, for the more classically inclined, cessante
ratione legis cessat ipsa lex.
60
Feldman, supra note 55.
61
Riley, 134 S. Ct. at 2488.
62
See Gant, 556 U.S. at 344–45 (considering the degree of privacy interests).
63
For example, even the First Circuit admitted that “the Supreme Court has never found the
constitutionality of a search of the person incident to arrest to turn on the kind of item seized or
its capacity to store private information.” United States v. Wurie, 728 F.3d 1, 9 (1st Cir. 2013).
64
Riley, 134 S. Ct. at 2488.
65
Chimel v. California, 395 U.S. 752, 765 (1969).
2014] THE SUPREME COURT — LEADING CASES 257
would be “‘reasonable’ to search a man’s house when he is arrested in
it,”
66
both because it was not “relevant to Fourth Amendment inter-
ests,” and because “Fourth Amendment protection in this area would
approach the evaporation point” under this type of analysis.
67
In fact,
it was the dissent that urged reasonableness balancing.
68
Similarly, in Robinson, the Court stated that the search-incident-to-
arrest exception was “based upon the need to disarm and to discover
evidence” — with no mention of competing privacy interests.
69
Even
the Riley Court admitted that Robinson had “focused primarily” on
the “heightened government interests at stake.”
70
And once again, it
was the dissent that marched under the banner of privacy interests: it
complained that the majority had forsaken “the individual’s interest in
remaining free from unnecessarily intrusive invasions of privacy.”
71
While the Riley Court’s embrace of reasonableness balancing departs
from traditional search-incident-to-arrest doctrine, it perfectly matches
the Roberts Court’s broader approach to the Fourth Amendment.
72
In
case after case, the Roberts Court has liquidated bright-
line rules about when a search is unreasonable and welcomed the “as-
cendance of ‘reasonableness balancing’ as a dominant mode of constitu-
tional inquiry.”
73
In theory, reasonableness balancing invites recognition
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
66
Id. at 764.
67
Id. at 765.
68
See id. at 772–75 (White, J., dissenting).
69
United States v. Robinson, 414 U.S. 218, 235 (1973).
70
Riley, 134 S. Ct. at 2488. Nevertheless, Riley insisted that Robinson really had taken priva-
cy interests into account because it approvingly quoted then-Judge Cardozo’s view that “[s]earch
of the person becomes lawful when grounds for arrest and accusation have been discovered, and
the law is in the act of subjecting the body of the accused to its physical dominion.” Id. (quoting
People v. Chiagles, 142 N.E. 583, 584 (N.Y. 1923)). Although the Riley Court suggested that this
language somehow confirmed the reduced privacy interests at stake in a custody situation, Judge
Cardozo’s opinion is better read as simply affirming when it is appropriate — as a matter of
law — to conduct a search incident to arrest. In the previous sentence, Judge Cardozo had noted
that “[s]earch of the person is unlawful when the seizure of the body is a trespass, and the purpose
of the search is to discover grounds as yet unknown for arrest or accusation.” Chiagles, 142 N.E.
at 584. He then went on to explain that this “distinction” is founded not upon a privacy analysis,
but rather, on a “shrewd appreciation of the necessities of government.” Id. (emphasis added).
71
Robinson, 414 U.S. at 254 (Marshall, J., dissenting).
72
As one scholar summarized, “tendrils of freestanding reasonableness have curled up in re-
cent cases in contexts that cannot be described as ‘exceptional.’” Murphy, supra note 2, at 185.
Scholars have long debated whether the Warrant Clause of the Fourth Amendment establishes a
baseline of reasonableness, or whether it should be understood independently of the Reasonable-
ness Clause. For the conjunctive view, see Anthony G. Amsterdam, Perspectives on the Fourth
Amendment, 58 M
INN
. L. R
EV
. 349 (1974); Carol S. Steiker, Response, Second Thoughts About
First Principles, 107 H
ARV
. L. R
EV
. 820 (1994). For the disjunctive view, see A
KHIL
R
EED
A
MAR
, T
HE
C
ONSTITUTION
AND
C
RIMINAL
P
ROCEDURE
(1997); T
ELFORD
T
AYLOR
, T
WO
S
TUDIES
IN
C
ONSTITUTIONAL
I
NTERPRETATION
(1969).
73
Murphy, supra note 2, at 183. This trend diverges from other areas of Fourth Amendment
doctrine. For example, while the Court has increasingly engaged in reasonableness balancing to
decide whether a search or seizure is unreasonable, it has returned to property-based bright line
258 HARVARD LAW REVIEW [Vol. 128:251
of a defendant’s privacy interests. In practice, though — and in con-
trast to Riley — many reasonableness balancing cases have not fa-
vored privacy rights unequivocally.
Two Terms ago, for example, the Court held in Maryland v. King
74
that the government may reasonably collect arrestees’ DNA without a
warrant or individualized suspicion.
75
It weighed the “need for law
enforcement officers in a safe and accurate way to process and identify
the persons . . . they must take into custody”
76
against a minimal intru-
sion and diminished expectations of privacy.
77
Over a vigorous dis-
sent, the Court concluded that this balance tipped in favor of the state.
One year before that, the Court applied a similar methodology in
Florence v. Board of Chosen Freeholders.
78
It considered whether it
was “reasonable” for detention centers to conduct an extensive strip
search of all new detainees — regardless of whether their offenses were
serious or reasonable suspicion was present.
79
As in King, the majori-
ty tussled with the dissent over the legitimacy of the government’s in-
terests and the extent of the intrusion on individual privacy, but con-
cluded that the procedures at issue “struck a reasonable balance
between inmate privacy and the needs of the institutions.”
80
As these examples and others
81
suggest, Riley may prove anoma-
lous in its embrace of defendant privacy interests for at least two rea-
sons. First, the Riley Court dealt with privacy interests both widely
shared and intuitively appealing. Second, the Court was unable to
find a compromise position short of the categorical rule it adopted.
First, Riley may have been an unusually pro-privacy decision be-
cause of its facts. Reasonableness balancing tends to value privacy
most in cases where government interests are low but privacy interests
are high and universally shared.
82
Cell phone searches implicate pri-
vacy interests that are not only substantial, but also ubiquitous.
83
As
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
rules in deciding whether the police conducted a “search” in the first place. See, e.g., Florida v.
Jardines, 133 S. Ct. 1409 (2013); United States v. Jones, 132 S. Ct. 945 (2012).
74
133 S. Ct. 1958 (2013).
75
Id. at 1980.
76
Id. at 1970.
77
Id. at 1979.
78
132 S. Ct. 1510 (2012).
79
See id. at 1520.
80
Id. at 1523.
81
See, e.g., Missouri v. McNeely, 133 S. Ct. 1552, 1569–70 (2013) (Roberts, C.J., concurring in
part and dissenting in part); Bailey v. United States, 133 S. Ct. 1031, 1048 (2013) (Breyer, J., dis-
senting); Kentucky v. King, 131 S. Ct. 1849, 1856 (2011); Arizona v. Gant, 556 U.S. 332, 344–47
(2009); Samson v. California, 547 U.S. 843, 848 (2006); see also Murphy, supra note 2, at 185–86.
82
Cf. Steiker, supra note 72, at 850.
83
Chief Justice Roberts put it best: “[M]odern cell phones . . . are now such a pervasive and
insistent part of daily life that the proverbial visitor from Mars might conclude they were an im-
portant feature of human anatomy.” Riley, 134 S. Ct. at 2484.
2014] THE SUPREME COURT — LEADING CASES 259
several commentators quickly pointed out, the Riley Justices would
“understand in an immediate sense precisely what it would mean for
their privacy if one of their phones was to be taken and searched.”
84
As a result, Riley may have turned on the Court’s “own sense of what
is intuitively private.”
85
But the same balancing approach may minimize privacy interests
when they are not widely shared and therefore less likely to garner judi-
cial empathy, especially when those interests are closely linked with so-
ciety’s “disfavored groups.”
86
Past “reasonableness” cases reflect this
pattern — in King, for example, the Justices had little to fear from DNA
identification tests limited to those arrested for “serious offenses.”
87
Even in Florence, where the Court refused to impose a similar limita-
tion, members of the majority took pains to limit the Court’s holding to
arrestees whose detention has been reviewed by a judicial officer.
88
Second, Riley may have been pro-privacy for lack of a better alter-
native. Riley’s handwringing about the lack of limiting principles re-
flects a broader and ceaseless search by the Roberts Court for doctri-
nal middle grounds. The Court has often wavered when weighing
compelling government interests against severe intrusions on individu-
al privacy, and been reluctant to revert to either extreme.
89
Instead, it
prefers adopting limiting principles that will plant its decision in the
middle of the road. In King, the Court limited its holding to cases in-
volving “an arrest supported by probable cause . . . for a serious of-
fense”
90
and where the statute “guard[ed] against further invasion of
privacy.”
91
Similarly, Florence sought to narrow the scope of its bal-
ancing act, lest the Court lose its purchase on the slippery slope of the
Fourth Amendment’s reasonableness clause. In separate concurrences,
Chief Justice Roberts and Justice Alito echoed the primary opinion by
“emphasiz[ing] the limits of today’s holding.”
92
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
84
Feldman, supra note 55.
85
Id.
86
Steiker, supra note 72, at 850. Society “will almost always fear the robbers more than the
cops, but this fact does not necessarily mean that everything the cops do is ‘reasonable.’” Id.; see
also Michael J. Klarman, Social Reform Litigation and Its Critics: An Essay in Honor of Ruth
Bader Ginsburg, 32 H
ARV
. J.L. & G
ENDER
251, 290 (2009) (“[C]ourts are never at the vanguard
of social reform . . . .”); cf. Feldman, supra note 55 (noting that the Justices’ intuitive empathy is
unlikely to extend to the NSA’s metadata programs).
87
Maryland v. King, 133 S. Ct. 1958, 1965 (2013).
88
See Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1522–23 (2012); see also id. at
1525 (Alito, J., concurring).
89
Cf. Amsterdam, supra note 72, at 388 (noting the temptation of reasonableness balancing).
90
King, 133 S. Ct. at 1980.
91
Id. at 1979.
92
Florence, 132 S. Ct. at 1524 (Alito, J., concurring); see also id. at 1523 (Roberts, C.J., con-
curring); id. at 1522–23 (majority opinion).
260 HARVARD LAW REVIEW [Vol. 128:251
In Riley, similar limitations proved to be a doctrinal holy grail —
the enticing object of an ultimately doomed quest. The Riley Court
was in “a desperate search for middle ground” that would have ac-
commodated some governmental interests at the expense of individual
privacy.
93
But in his concurrence, Justice Alito admitted that he “d[id]
not see a workable alternative” to the majority’s rule.
94
This confes-
sion may help explain Riley’s sweeping, pro-privacy outcome — ulti-
mately, the Court may have skipped over the middle ground because it
could not find a place to land. Every alternative option either had “no
practical limit,”
95
or “would launch courts on a difficult line-drawing
expedition.”
96
If so, then Riley may have come out cleanly in favor of
privacy, but not for lack of trying.
Four decades ago, a prescient scholar warned against a turn to rea-
sonableness. Despite its allure, he cautioned that “if some discipline is
not enforced, if some categorization is not done, if the understandable
temptation to be responsive to every relevant shading of every relevant
variation of every relevant complexity is not restrained, then we shall
have a [F]ourth [A]mendment with all of the character and consistency
of a Rorschach blot.”
97
As the Roberts Court’s “reasonableness” cases
suggest, a Rorschach Fourth Amendment is useful for diagnosing the
pathologies of society and for conjuring sharp lines and borders where
none exist. But a sliding scale approach is less useful for protecting in-
dividual privacy, often lapsing into “more slide than scale.”
98
Riley was
a victory for privacy advocates, and an easy case under reasonableness
balancing. The Court is unlikely to be as solicitous of defendants’
rights in future cases if it continues to rely on the same approach.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
93
S.M., There’s No App for That, T
HE
E
CONOMIST
(April 30, 2014, 2:01 PM),
h t t p : / / w w w . e c o n o m i s t . c o m / b l o g s / d e m o c r a c y i n a m e r i c a / 2 0 1 4 / 0 4 / m o b i l e - p h o n e - p r i v a c y [http://perma.cc
/PCT6-NE5M]. In oral arguments, the Justices repeatedly demanded an “in-between rule.” Tran-
script of Oral Argument at 38, Riley, 134 S. Ct. 2473 (No. 13-132) (Breyer, J.), http://www
. s u p r e m e c o u r t . g o v / o r a l _ a r g u m e n t s / a r g u m e n t _ t r a n s c r i p t s / 1 3 - 1 3 2 _ h 3 1 5 . p d f [ http:// perma.cc/4AQL
-XTZP].
94
Riley, 134 S. Ct. at 2497 (Alito, J., concurring in part and concurring in the judgment).
95
Id. at 2492 (majority opinion).
96
Id. at 2493.
97
Amsterdam, supra note 72, at 375; see also Dunaway v. New York, 442 U.S. 200, 213 (1979)
(warning how “the protections intended by the Framers could all too easily disappear” under rea-
sonableness balancing).
98
Amsterdam, supra note 72, at 394. Indeed, this slide may have already begun. In King, for
instance, the Court proclaimed that “the necessary predicate of a valid arrest for a serious offense
is fundamental.” 133 S. Ct. 1958, 1978 (2013). But such limitations are unstable; they rest only on
the Court’s abstract sense of “reasonableness.” See, e.g., Haskell v. Harris, 745 F.3d 1269, 1271,
1273–74 (9th Cir. 2014) (en banc) (Smith, J., concurring in the judgment). Even the Court itself
has had difficulty halting the decay. As the State searched for a limiting rationale in Riley’s oral
arguments, Justice Kennedy — the author of King less than a year earlier — dismissed a “distinc-
tion . . . between serious and nonserious offenses” because he did not “think that [it] exists in our
jurisprudence.” Transcript of Oral Argument, supra note 93, at 41. So much for “fundamental.”
