IN: Car’s GPS device protected under Riley; SW required

A vehicle’s GPS device is not a container subject to search under the automobile exception. It contains personal data, and it is akin to a cell phone, and a warrant is required under Riley. Wertz v. State, 2015 Ind. App. LEXIS 505 (July 7, 2015):

P17 In our view, the GPS unit in this case is akin to a computer or cell phone. The device stores large amounts of information that could not possibly be stored in an ordinary physical container. For that reason, an electronic storage device cannot be treated as a container. Moreover, the location data it does store has been identified by the Supreme Court as private information. Just as the Supreme Court believed that treating a cell phone as a container was “a bit strained,” id. at 2491, we believe that treating the GPS device as a container under the automobile exception is inappropriate.

P18 The State maintains that Wertz’s GPS device is not deserving of the same level of protection as a cell phone, because a GPS device does not contain the same amount of personal information. The GPS unit does not hold pictures, Internet history, text messages, a calendar, or several of the other features that a smart phone does. No one will dispute that society considers a cell phone to be more private than the GPS device in this case. But that does not mean that electronic devices other than cell phones are not entitled to Fourth Amendment protections. It remains true that devices like Wertz’s GPS have an enormous storage capacity, and they store information that most people consider to be private. Any differences between the contents of a cell phone and a GPS device do not support treating the GPS device as a container.

P19 The State also asserts that “Riley does not control because it says nothing of the automobile exception.” Br. of Appellee at 23. The State argues that unlike the search-incident-to-arrest exception, which is borne out of concerns for officer safety and preservation of evidence, the automobile exception is based on a diminished expectation of privacy in the vehicle itself and applies “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Id. at 23 (quoting Gant, 556 U.S. at 343).

P20 The State’s proposed distinction would require us to conclude that a cell phone found next to a driver in the passenger seat of his vehicle could be searched without a warrant, regardless of the Supreme Court’s decision in Riley. But such an outcome is unthinkable if the Court meant what it said in Riley. Although the State is correct that Riley dealt only with the search-incident-to-arrest exception, Riley’s discussion of Fourth Amendment protections afforded to electronic devices that store private information transcends the search-incident-to-arrest exception. The analysis in Riley easily transfers to other circumstances where an exception to the warrant requirement would otherwise exist, including the automobile context. See Chung, 2014 WL 5408439, at *5-6 (Tex. App. Feb. 11, 2015) (relying on Riley and holding that an officer’s warrantless search of a cell phone was not justified under the automobile exception to the warrant requirement); United States v. Kim, Crim. Action No. 13-0100 (ABJ), 2015 WL 2148070, at *18-22 (D.D.C. May 8, 2015) (applying Riley to the search of a computer under the border exception to the warrant requirement).