The Employer's Legal Resource: Fourth Amendment in the Digital Age - Why You Need a Cellphone Policy

08.01.14

David Riley was stopped for driving with expired tags and was arrested on weapons charges after an inventory search of his vehicle turned up two loaded firearms. In conducting a search incident to arrest, the officer seized a cellphone from Riley's pants pocket and, without a warrant, proceeded to search the information on the phone. The officer noticed the repeated use of "CK"—an acronym that he believed stood for "Crip Killers," a slang term often used to identify members of the Bloods gang. At the police station two hours later, a detective specializing in gangs examined the phone's digital contents and found further indicia of Riley's gang affiliation, including a photograph and a video linking Riley to a shooting that had occurred three weeks earlier. The State charged Riley with crimes in connection with the shooting and alleged Riley committed those crimes for the benefit of a criminal street gang—an aggravating factor that carrie d a heavier sentence. Riley moved to suppress all evidence that the police obtained from his cellphone, contending that the warrantless searches of his phone violated the Fourth Amendment. The trial court denied the motion, and Riley was convicted. The California Court of Appeal affirmed, and Riley appealed to the U.S. Supreme Court. In a unanimous reversal, the Supreme Court ruled that police may not generally search the cellphone of an arrested individual without a warrant.

On the surface, the Supreme Court's opinion in Riley v. California seems only to pertain to Fourth Amendment protections in the criminal context. However, the ruling may have implications for employers facing potential or active litigation. Because a privacy interest recognized in one area of law — in this case the Fourth Amendment — often expands into other areas, employers should anticipate that courts will apply the Supreme Court's reasoning in Riley to an employer's attempts to search an employee's cellphone.

From an employment law perspective, access to cellphone data could arise in a broad range of situations, such as disputes regarding email or text message communications, improper handling of confidential business information, or dissemination of trade secrets, just to name a few.

In this "digital era," where cellphone use is ubiquitous and the growing trend among employers is to allow employees to conduct company business using privately owned devices, it is becoming more common for potentially relevant information to be stored on devices that are only accessible by the employee. After Riley, an employee has a useful source of authority to block or significantly limit discovery into cellphone information on the basis of privacy concerns.

Employers can obviate these potential problems by implementing policies that govern the type of information that employees may store and access on their cellphone, as well as situations in which the employer may conduct cellphone searches. Companies often have internet, email, and social media policies, but they need cellphone-specific policies, too, to delineate areas where employees should not have reasonable expectations of privacy.

By Destyn D. Stallings, dstallings@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
litigation and counsels clients regarding everyday employment matters. 

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