Riley v. California: The Aftermath and the Unanswered Questions

Abstract

The cases decided in the wake of Riley v. California, where the Court unanimously held that warrantless searches of cell phones incident to arrest violated the Fourth Amendment, suggest that Riley will not materially alter the Fourth Amendment landscape. For example, the courts continue to distinguish Riley and permit law enforcement officers to perform warrantless searches of digital devices that contain private information. In fact, Justice Alito may have been right when, in United States v. Jones, he stated that, “even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.” If Justice Alito is correct, society will inch closer to countenancing “the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” The broader problem with the the Court’s Fourth Amendment jurisprudence is that it is plagued by inconsistent and unprincipled decisions, has failed to adequately protect private rights, and has given law enforcement every reason to believe that Riley has a lot of bark but no bite.”

Keywords: riley v. california, fourth amendment, search incident to arrest, warrantless searches

JEL Classification: K14