MENLO PARK — At a favorite Stanford University watering hole called the Dutch Goose, law professor Jeffrey Fisher and a group of his students gathered last week to hoist a few drinks to celebrate one of the U.S. Supreme Court’s most important rulings in the history of digital privacy rights.
They had good reason.
As part of Stanford’s cutting-edge U.S. Supreme Court Litigation Clinic, they had plucked from obscurity a California criminal case involving a convicted San Diego street gangster and persuaded the nation’s highest court to rewrite the lawbooks by ruling that police cannot search cellphones without a warrant.
The decision not only gives inmate David Leon Riley a strong chance for a new trial, it establishes strict privacy boundaries for law enforcement for the iPhone Age and beyond. Fisher, who argued the case in the Supreme Court, considered the issue ideal for Stanford’s clinic, the first of its kind in the country.
“It’s funny how the Supreme Court reaches down and picks this case and for years and decades David Riley’s name will be attached to this issue,” said Fisher, who once clerked for former Supreme Court Justice John Paul Stevens and has argued nearly two dozen cases in the high court.
The law students who worked on the case may not have their names attached to it, but they toiled countless hours behind the scenes as the appeal to the Supreme Court went from legal pipe dream to landmark ruling.
Seth Lloyd, one of the law students who worked the case from the beginning, recalls polling law school students early on about what they would fear more: a police search of their home, or of their smartphone. The answer, resoundingly, was that they were far more concerned about the private information in their phones.
“We’re part of the smartphone generation,” Lloyd said.
The path of Riley’s case to the U.S. Supreme Court was not typical, or predictable. It traces back to a 2009 shooting, when members of the Crips street gang were suspected of shooting at an occupied car. Two weeks later, police stopped Riley and found two handguns linked to the crime. They also confiscated and searched his smartphone — the event that later triggered the Supreme Court’s review.
The search of the phone revealed evidence used against Riley, including records showing the device had been near the shooting scene. Over the objections of Riley’s trial lawyer, who argued the phone records were taken during an illegal search, the evidence was used to help convict him of attempted murder and other felonies. He was sentenced to 15 years in prison.
Riley’s appeal raised a host of issues, but it appeared the smartphone search argument would be a long shot. In 2011, the California Supreme Court concluded that law enforcement needed no warrant to search a cellphone, foreclosing the argument under state law. An appeals court relying on the Supreme Court precedent in 2013 upheld Riley’s conviction.
That’s when Stanford’s clinic unleashed Fisher and the students. The clinic had been looking for the right case to push the phone-search issue to the high court. In their U.S. Supreme Court petition, they argued that police should not be able to rummage through the unlimited personal information kept in smartphones without at least first getting a judge’s consent at the time of an arrest.
Riley’s appellate lawyer, Pat Ford, recalls now that he considered the phone search his “third-best issue” on appeal, figuring the state Supreme Court had ended his chances. When he got a call from Fisher, well known for his Supreme Court work and the clinic’s co-director, Ford realized the chances of attracting the justices’ attention “jumped by magnitudes.”
“Most lawyers go through their entire career and never get a sniff at (getting the Supreme Court to take a case),” Ford said. “It’s a lottery ticket for most of us.”
Stanford’s law school set up the clinic 10 years ago for just that reason, figuring it could use its prestige and know-how to help with cases each Supreme Court term. Established by law professor Pam Karlan, the clinic has backed a steady stream of key cases, including last year’s Supreme Court ruling striking down the federal Defense of Marriage Act, which denied benefits to same-sex couples. Other law schools have now mimicked the approach, from Yale to UC Irvine.
When the Supreme Court decided in January to take the Riley case, Lloyd and fellow clinic student Ben Chagnon were playing pickup basketball. Of course, the news popped into their smartphones.
“We were super-excited,” said Chagnon, whose next stop is a clerkship in an Indiana federal appeals court. “It was going to make a meaningful difference in (Riley’s) case.”
By the time the Supreme Court decided the issue in late June, civil liberties groups had lined up to back the clinic’s arguments, which were opposed by California Attorney General Kamala Harris and the Obama administration.
Chief Justice John Roberts, in writing the unanimous opinion telling law enforcement to “get a warrant,” observed that smartphones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
Ironically, there was no way to let Riley know about the outcome, as his Kern County prison has been in lockdown. But Fisher and his students got exactly what they wanted.
“This is one of the most important cases we’ve ever done,” said Fisher. “Unlike a lot of Supreme Court opinions, this one was pretty loud and clear. It wasn’t as much of a long shot as you’d think.”
Howard Mintz covers legal affairs. Contact him at 408-286-0236 or follow him at Twitter.com/hmintz