S.D.N.Y.: NYPD warrantlessly searched a camera memory card; govt must brief whether Riley applies

Defendant didn’t show standing to challenge the search of a car that produced some evidence and a digital camera. He was, however, the undisputed owner of a digital camera that the NYPD removed the memory card from and searched without a warrant. Analogizing this search to a cell phone search, it would appear that Riley might control. Since the government’s briefing was pre-Riley, it should rebrief. United States v. Whiteside, 2014 U.S. Dist. LEXIS 140439 (S.D. N.Y. September 30, 2014):

B. The Warrantless Search of the Digital Camera

The search of the Mercedes also uncovered a digital camera. Officers accessed the contents of the digital camera at the station by removing its internal memory card, plugging the memory card into their computer, and uploading its contents to their screens. Carvlin Decl. ¶ 23. Since Defendant is the undisputed owner of the digital camera, he has a Fourth Amendment interest in its contents. Whiteside Aff. ¶ 11. Defendant claims that the search of the camera violated his Fourth Amendment rights and that the files contained on the camera’s memory card should be suppressed.

Defendant relies on the holding in Riley v. California, 134 S. Ct. 2473 (June 25, 2014) (a warrant is required before searching a “smart phone” seized incident to arrest). Although Riley deals with searching the content of smart phones, its rationale appears to be equally applicable to searching the content of digital cameras given their storage capacity and labelling (time/date/location) capabilities. Indeed, the evidence suppressed in Riley came from the smart phone’s camera and photo storage feature. Id. at 2481 (“Although there was ‘a lot of stuff on the phone, particular files that ‘caught [the detective’s] eye’ included videos of young men sparring while someone yelled encouragement using the moniker ‘Blood.’ The police also found photographs of Riley standing in front of a car they suspected had been involved in a shooting a few weeks earlier.”) (citations omitted). Riley focused on a smart phone’s ability to take and store vast numbers of photos. Id. at 2489 (“The sum of 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.”). Since a warrant is required before searching “thousands of photos in a digital gallery” on a smart phone, id. at 2493, it may well be that a warrant is required before searching a digital camera.

The Government’s initial argument, that a warrant was not required to search a digital camera incident to a lawful arrest, was made in December 2013, six months before the Supreme Court’s June 25, 2014 decision in Riley; and the Government’s sur-reply, dated September 22, 2014, does not address this issue. The Government has 10 days to brief the issue of whether the product of the warrantless search of the digital camera must be suppressed under the Supreme Court’s ruling in Riley.