State Supreme Court Says Digital Cameras Can't Be Searched Without A Warrant

Some more good news on the Fourth Amendment front, even if it's somewhat jurisdictionally limited: the Supreme Judicial Court of Massachusetts has (sort of) decided [PDF] the Supreme Court's Riley decision isn't just for cellphones. (via FourthAmendment.com)

In this case, the search of a robbery suspect's backpack while he was being questioned yielded a ring, a digital camera, and other items. The police warrantlessly searched the digital phone, discovering a photo of the suspect next to a firearm later determined to have been stolen. This led to two convictions: one for the stolen property and one for carrying a firearm without a license.

The defendant challenged all of the evidence resulting from the warrantless search of the backpack, but the state got to keep most of what it found, along with the conviction for theft. But it didn't get to keep the firearm conviction, as the court here sees digital cameras to be almost no different than cellphones when it comes to warrantless searches and the Riley decision. From the opinion:

The Commonwealth counters that Riley does not apply because digital cameras, lacking the ability to function as computers, are not analogous to cell phones for Fourth Amendment purposes. We decline to address the constitutionality of the search of the digital camera on Fourth Amendment grounds, but we apply the reasoning in Riley in holding that the search of the camera violated art. 14 [of the Massachusetts Declaration of Rights].

As the court points out, there's nothing in the law that allows officers to warrantlessly search something if that something poses no risk to officer safety or the preservation of evidence. Searching the backpack is fine, because it may have contained a weapon. But searching the camera isn't because a camera isn't a weapon (the US Supreme Court made the same observation about cellphones) and the possibility of evidence destruction even lower in a device with limited or zero network connectivity.

This reasoning presents a compelling basis to exclude digital cameras from the reach of the search incident to a lawful arrest exception to the warrant requirement. Like the cell phone, the twin threats of "harm to officers and destruction of evidence" are not present with regard to the data on a digital camera. See id. Once the camera has been secured and potential threats eliminated, "data on the [camera] can endanger no one." Id. at 2485 (officers free to "examine the physical aspects of a phone to ensure that it will not be used as a weapon" [emphasis supplied]). Likewise, the risk of destruction of incriminating data is also mitigated once the camera has been secured. Although the concern regarding the destruction of cell phone data via remote wiping and data encryption was considered and rejected by the Supreme Court, see id. at 2486, this issue poses even less of a risk with respect to digital cameras, which, like the camera at issue here, may lack Internet or network connectivity.

The court also finds digital cameras to be just as filled with private information as cellphones, at least in terms of opening them up to search warrant exceptions. Cellphones contain far more personal information to be sure, but that doesn't make digital cameras any less of a privacy concern.

Although digital cameras do not allow storage of information as diverse and far ranging as a cell phone, they nevertheless possess the capacity to store enormous quantities of photograph and often video recordings, dating over periods of months and even years, which can reveal intimate details of an individual's life. As the United States Supreme Court aptly recognized, "an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet," Riley, 134 S. Ct. at 2489, and "the fact that a search in the predigital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery." Id. at 2493.

But for all the Riley decision quotes, the state Supreme Court doesn't go so far as to apply Riley to digital cameras. It notes the US Supreme Court did not explicitly address digital cameras, so it's not interested in setting precedent beyond its jurisdiction. Instead, the court finds the warrantless search a violation of the state's version of the Bill of Rights.

Instead, we decide the issue based on our State Constitution, bearing in mind that "art. 14 . . . does, or may, afford more substantive protection to individuals than that which prevails under the Constitution of the United States." Commonwealth v. Blood, 400 Mass. 61, 68 n.9 (1987). We hold, for the same reasons articulated by the Supreme Court in Riley and as set forth above, that digital cameras may be seized incident to arrest, but that the search of data contained in digital cameras falls outside the scope of the search incident to arrest exception to the warrant requirement. [...] Indeed, with the twin threats justifying the search incident to arrest exception mitigated here because the camera was secure in the custody of the police, the officers had ample opportunity to obtain a search warrant.

As other electronic devices are subjected to warrantless searches, I expect more courts will find Riley covers those as well, even if not explicitly named in the 2014 decision. When officers have "ample opportunity" to seek a warrant for a seized item, "but it's not a phone" is a relatively worthless argument.