In one of the first circuit court cases to consider the search of a cell phone incident to arrest in the post-Riley world, the Ninth Circuit firmly rejected all of the government’s attempts to make an end-run around the Riley case. In United States v. Camou, a police officer arrested Chad Camou and his girlfriend Ashley Lundy for smuggling an illegal immigrant. During her interrogation, Lundy told the officers that they had received instructions on where to pick up the immigrant from a person named “Mother Theresa.” In the meantime, Camou’s cell phone (which had been seized by the police) rang several times, and Lundy identified the number as belonging to Mother Theresa. The officer looked through the call log of the telephone, and found a number of other calls from Mother Theresa. The officer then examined the photos on the phone and found–you guessed it–child pornography. Camou was duly charged with possession of child pornography. (The original immigration smuggling charges were dropped).
The government had three plausible arguments to get around the Riley decision. First, the government argued that the because the defendants were arrested in their vehicle, the automobile exception should apply instead of the search incident to arrest exception. Under Gant, the police are allowed to search any container that is found in a car as long as there is reason to believe that the container contains evidence or contraband–and given the facts of the case, the police probably had reason to believe there was information about the crime of arrest on the phone. The Ninth Circuit rejected this argument, extending the Riley rationale to the automobile exception:
Given 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. 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. Id. 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 Belton, 453 U.S. at 460 n.4, “[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).
The government then argued that the exigency exception should apply–a possibility that was explicitly kept open in the Riley decision. But the Ninth Circuit rejected this as well. The court quoted the Supreme Court’s language in Riley:
“When “the police are truly confronted with a ‘now or never’ situation—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately.” But the Ninth Circuit held that the government did not meet its burden of proving any “special circumstances” in this case: “Here, the search of Camou’s cell phone occurred one hour and twenty minutes after his arrest. This was not an “imminent” “now or never situation” such that the exigency exception would apply. Moreover, the record does not indicate that Agent Walla believed the call logs on Camou’s cell phone were volatile and that a search of Camou’s phone was necessary to prevent the loss of recent call data.”
Finally, the government argued that the good faith exception should apply, since the police officer conducted the search before Riley had been decided, and thus under Herring v. United States, the police officer acted in good faith. The Ninth Circuit pointed out that even before Riley had been decided, the law stated that a search incident to a lawful arrest had to occur “contemporaneously” with the arrest, and that this search occurred eighty minutes after the arrest. The government had responded to this argument by claiming that Herring held that a mistake by the police officer would not invalidate the search unless the officer acted “reckless or deliberate” officer conduct. But just as the Ninth Circuit interpreted Riley broadly, it interpreted Herring narrowly:
The Supreme Court has never applied the good faith exception to excuse an officer who was negligent himself, and whose negligence directly led to the violation of the defendant’s constitutional rights.3 Here, the government fails to assert that Agent Walla relied on anyone or anything in conducting his search of Camou’s cell phone, let alone that any reliance was reasonable. The government instead only asserts that by searching the phone, Agent Walla was not acting “recklessly[,] or deliberately” misbehaving. In this case, the good faith exception cannot apply.
Finally, the Ninth Circuit pointed out that even if one of these exceptions had applied, the government would still have lost the case because the police search of the phone was not supported by probable cause. Although the police had probable case to believe that the phone call logs contained evidence of the immigration crime (and thus the police could presumably have obtained a warrant to look at the call logs), the search they conducted was overbroad because the police went beyond the phone log and searched through Camou’s photos and videos as well. Like the reasoning in the rest of the opinion, this part of the holding demonstrates that the Ninth Circuit is embracing the spirit of the Riley decision by treating smart phone searches as qualitatively different from any other type of search.