By Michael Doyle
McClatchy Washington Bureau
San Diego police used photos and videos found on David Riley's Samsung Instinct device to connect him to a gang-related shooting. Convicted on attempted murder and other charges, the 22-year-old is doing time at California'sKern Valley State Prison.
Now, he's calling the Supreme Court.
In a case that's unique to the iPhone era, justices are being asked to consider whether police need a warrant to search the capacious and sometimes incriminating digital files many people now carry in their pockets. So far, the question has divided judges.
"No one is saying that police should not be able to seize a smartphone," said Jules Epstein, a professor at Widener University School of Law. "The question is, can they open it? Can they open the folder called 'photos'? Can they go through my last 10 Google searches?"
On Monday, Riley's petition was one of dozens put on the docket for potential consideration by Supreme Court justices. At least four justices must agree for a petition to be granted and the case set for full argument. Most petitions fail.
The omnipresence of smartphones and the split opinions from different courts could help Riley get a hearing. An estimated 91 percent of U.S. adults now own a cellphone, and 61 percent of these are info-packed smartphones such as Apple's iPhone, Google's Android and Samsung's Instinct.
The Supreme Court previously has ruled that police can conduct certain warrantless searches "incident to arrest" without violating the Fourth Amendment prohibition against unreasonable searches and seizures.
Three appellate circuits have upheld warrantless searches of cellphones. One federal appellate circuit has struck down such searches, as have some state supreme courts. In May, in a case arising from a Jacksonville, Fla., robbery, the Florida Supreme Court struck down a warrantless search of a phone taken from a suspect before he was placed in a police car.
The phone included incriminating photos. One showed the suspect's significant other holding a lot of money a day after the robbery.
Supreme Court justices are being asked to consider whether police need a warrant to search the capacious and sometimes incriminating digital files many people now carry in their pockets.