President’s Column
officers located the premises and identified
a woman from a photograph contained in
the phone. The police ultimately obtained
a warrant to search that location.5 In Riley,
officers seized the defendant’s phone, pursuant to an arrest for a gun charge, and reviewed photos and videos contained in the
phone that demonstrated a gang affiliation
and tied him to an earlier shooting.6
In April, the Supreme Court heard argument in these two cases. The argument was
fascinating and demonstrated the difficulty in applying pre-digital legal concepts to
digital facts.7 The Court wrestled with the
question, “Is digital different?” Does the
amount of information contained on modern phones change the equation? Does
the nature of the information contained
on modern phones change the equation?
Do traditional methods of analyzing search
and seizure issues help in reaching a conclusion? There is an analog analogy for almost any digital information. Photos can
exist in print or digitally. A contact list can
exist as a handwritten address book and
could contain your home address. The information in a banking app can exist as a
printed statement and carried on your person. GPS information from a phone can exist as a written set of directions or a written diary of locations visited. If the informa-
tion is the kind of information that the police could have searched for in a pre-digital
age, should they still be able to search for
it on a phone? From the arguments, it appeared clear that had Riley’s home address
been contained in an address book in his
pocket or had Wurie’s photo been a photo
contained in his wallet, the evidence would
have been lawfully obtained and admissible. However, the Court ruled that digital is
different and a search warrant was necessary before a search of a cell phone.8
Another example of how hard it can be
to answer digital questions with pre-digital
legal doctrine can be found in the United
States Supreme Court’s decision in United States v. Jones.9 In Jones, the Court
had to examine the use of a GPS monitoring device that had been attached to the
defendant’s vehicle without a search warrant. One question raised by the case was
the surveillance of the defendant by the
long term use of the GPS monitoring device. Another question raised by the case
was the placing of the GPS monitoring device in the defendant’s vehicle. The Court
unanimously ruled that a search warrant
was needed, but the Court was split as to
the reason why. The majority held that the
“Government physically occupied private
property for the purpose of obtaining in-
formation. We have no doubt that such a
physical intrusion would have been considered a ‘search’ within the meaning of the
Fourth Amendment when it was adopted.”10 The concurrence accused the majority of applying “18th-century tort law” and
would have analyzed “the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he
drove.”11 This case highlights the difficulties that arise in using pre-digital doctrine
to analyze digital issues. The movement of
defendant’s vehicle was in plain view. The
police could have watched the defendant’s
vehicle’s public movements for the same
twenty-eight day period without any implication of the Fourth Amendment. However, the entire Court agreed that a warrant
was needed to affect the same outcome
using digital means.
This list is by no means exhaustive and
these are only a few of the challenges that
we will face as the law transitions into the
digital age. We will all wrestle with these
questions as they arise in each of our own
areas of practice and our cases. Some of
the old answers will still remain, but many
will fall by the wayside. But, just as the VBA
is moving to meet the challenges facing
the legal profession as outlined by Chief
Justice Reiber, the VBA will continue to
meet the challenges brought on by these
digital changes, whether it is through the
presentation of continuing legal education
courses that address issues raised by these
changes or the work of the VBA sections.
I know that this transition will not be easy,
but the journey is certain to be interesting.
____________________
David Fenster, Esq., is Addison County
State’s Attorney and the president of the
Vermont Bar Associaton.
____________________
https://www.dmdc.osd.mil/appj/scra/scraHome.do
2
Riley v. California, No. 13-132; Riley v. California, 573 U.S. ____ (2014).
3
U.S. v. Wurie, No. 13-212; Riley v. California,
573 U.S. ____ (2014).
4
U.S. v. Robinson, 414 U.S. 218 (1973). Under the Vermont Constitution, such searches are
similarly permitted, with the exception of closed
containers absent exigent circumstances. State
v. Neil, 2008 VT 79.
5
U.S. v. Wurie, 728 F.3d 1 (CA1 2013)
6
People v. Riley, 2013 WL 475242 (Cal. Ct.
App. 4th Dist., Feb. 8, 2013) (unpublished).
7
h t t p : / / w w w. s u p r e m e c o u r t . g o v / o r a l _
arguments/argument_audio_detail.
aspx?argument=13-132&TY=2013; http://www.
supremecourt.gov/oral_arguments/argument_
audio_detail.aspx?argument=13-212&TY=2013.
8
Riley, 573 U.S. ____, slip op. at 10 (2014).
9
U.S. v. Jones, 132 S.Ct. 945 (2012).
10
Id. at 949.
11
Id. at 945.
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THE VERMONT BAR JOURNAL • WINTER 2014
www.vtbar.org