Arent Fox Files Supreme Court Brief in High Profile Fourth Amendment Case

Complex Litigation partners James H. Hulme and Donald B. Mitchell filed the brief on behalf of The Liberty Project, a nonprofit organization committed to protecting privacy, guarding against government overreach, and protecting the freedom of all citizens to engage in expression without government interference.

“It is black letter law that the Fourth Amendment attaches when a citizen has a reasonable expectation of privacy,” said Mr. Mitchell. “The obvious solution when there is probable cause to believe that a smartphone contains evidence is for police to simply seize the phone and turn it off until a warrant is obtained. A smartphone contains or has access to extensive amounts of private and personal information formerly kept in the home, where it was immune from search without a warrant. And with the increasing uses of apps for home monitoring via iCam software, as well as increasing uses of financial, medical, physical activity, and even mental health apps, the smartphone has become simply an extension of the person and, indeed, his digital home.”

In Riley, David Leon Riley was arrested for a traffic offense. Despite not having a warrant, police seized Mr. Riley’s smartphone at the time of the arrest and subsequently searched it hours and days later. Prosecutors later used a photograph from that phone to place him at the scene of an August 2009 incident in San Diego where shots were fired at an occupied vehicle.

“Warrantless cell phone data searches are categorically unauthorized under the search incident-to-arrest exception,” argues the amicus brief. “If the police have probable cause to believe that the smartphone contains evidence of the crime of arrest, they may simply seize the phone and turn it off or ‘bag it’ so that there is no risk of loss or destruction of evidence while a warrant upon probable cause is obtained.”

Arent Fox’s Complex Litigation group has been recognized by Chambers USA for its “streamlined” approach that delivers “quality” results. With more than 125 litigators, the practice boasts a deep bench and international reach while having extensive experience in high-stakes litigation before federal and state courts and regulatory agencies. The group is especially proficient at managing parallel litigation in multiple jurisdictions and represents clients in matters that include intellectual property, health care, life sciences, trade, automotive, insurance and human rights abuses.