Independent Warrant Analysis Required for Ride‑Hail App Searches During Traffic Stops: Second Circuit’s Nonprecedential Reminder in Etere v. Nassau County

Introduction

In Etere v. Nassau County (No. 24‑1755‑cv, 2d Cir. Oct. 3, 2025), the U.S. Court of Appeals for the Second Circuit issued a Summary Order resolving an appeal by a pro se plaintiff, Emmanuel Etere, against Nassau County and two officers, Ryan Fais (Nassau County Police Department) and Joseph Sodano (Nassau County Taxi & Limousine Commission). The case arises from two separate traffic encounters in 2016 and 2017 when Etere, a part‑time Uber driver, was stopped and, in each stop, an officer accessed his smartphone to review his Uber app trip history without a warrant.

Etere brought federal claims under 42 U.S.C. § 1983 alleging Fourth Amendment violations for unreasonable seizures (the stops) and unreasonable searches (the phone inspections). He also asserted New York constitutional claims (Article I, § 12) for the searches, and New York common‑law claims for malicious prosecution and tortious interference with contract (based on the termination of an active Uber trip). The district court granted summary judgment to defendants across the board in an oral ruling; Etere appealed.

Although this is a nonprecedential Summary Order (and therefore not binding authority in the Second Circuit), it provides a significant reminder: the legality of a traffic stop and the legality of a cell‑phone search are analytically distinct. Reasonable suspicion (or even probable cause) for the stop does not dispense with the warrant requirement governing searches of digital data under Riley v. California.

Summary of the Order

• Affirmed:
  • 2017 stop: The officer (Sodano) had reasonable suspicion to stop Etere based on observable facts suggesting unlawful operation of a for‑hire vehicle in Nassau County without a local NCTLC license (Nassau County Ordinance No. 155‑2014).
  • New York Constitution claim (Art. I, § 12): Dismissal affirmed because § 1983 provides an available remedy; a standalone state constitutional tort is “narrow” and unavailable where other remedies exist.
• Vacated and Remanded:
  • 2016 stop: Genuine disputes of material fact exist as to whether Officer Fais had reasonable suspicion to stop Etere for a covered license plate (N.Y. VTL § 402).
  • Both warrantless cell‑phone searches (2016 and 2017): The district court failed to conduct a separate Riley analysis (including consent and exceptions). Those claims must be analyzed independently from the stops.
  • Malicious prosecution: Revived for both the 2016 and 2017 citations; probable cause must be reassessed (2016) and, for 2017, depends on the permissibility of the phone search.
  • Tortious interference with contract: Revived because the district court’s conclusion that interference was incidental to a lawful purpose presupposed the search’s constitutionality, which remains unresolved.
  • Qualified immunity: Vacated because it rested on the district court’s probable‑cause findings and the unexamined constitutionality of the phone searches.

The court’s mandate requires the district court to conduct a separate Fourth Amendment analysis of the smartphone searches, including voluntariness of consent and any relevant exceptions, and to reconsider qualified immunity and the state‑law torts in light of that analysis.

Analysis

Precedents and Authorities Cited

• Riley v. California, 573 U.S. 373 (2014): Requires a warrant to search data on a cell phone, subject to narrow exceptions. Central to the remand; the appellate court underscores that a traffic stop’s legality does not erase Riley’s warrant requirement.
• United States v. Smith, 967 F.3d 198 (2d Cir. 2020): Reinforces Riley’s rule in the Second Circuit; officers generally must secure a warrant to search a phone. Cited to emphasize the separate analysis required for digital searches.
• United States v. O’Brien, 926 F.3d 57 (2d Cir. 2019): Discusses voluntariness of consent under the totality of circumstances. The panel directs the district court to assess whether Etere’s consent was voluntary given the alleged threats of arrest, impoundment, and multiple tickets.
• Statharos v. NYC Taxi & Limousine Comm’n, 198 F.3d 317 (2d Cir. 1999): Recognizes diminished privacy interests for participants in heavily regulated industries (there, taxi drivers). The panel flags whether a similar principle affects expectations of privacy for ride‑hail drivers, but it does not resolve this question—leaving it for the district court in the first instance, consistent with Riley.
• Gilles v. Repicky, 511 F.3d 239 (2d Cir. 2007): Articulates the basic Fourth Amendment principle that traffic stops are seizures that must be reasonable.
• United States v. Gomez, 877 F.3d 76 (2d Cir. 2017); United States v. Stewart, 551 F.3d 187 (2d Cir. 2009); United States v. Jenkins, 452 F.3d 207 (2d Cir. 2006): Together, these cases explain reasonable suspicion/probable cause frameworks for traffic stops and the permissibility of stops even where officers are mistaken about facts, so long as the mistakes are reasonable.
• Unkechaug Indian Nation v. Seggos, 126 F.4th 822 (2d Cir. 2025): Clarifies de novo review of summary judgment and the requirement to view facts in the light most favorable to the non‑movant.
• Triestman v. Federal Bureau of Prisons, 470 F.3d 471 (2d Cir. 2006): Directs that courts construe pro se submissions liberally to raise the strongest arguments they suggest.
• Brown v. State, 89 N.Y.2d 172 (1996); Allen v. Antal, 665 F. App’x 9 (2d Cir. 2016): State‑law authorities narrowing private damages actions under the New York Constitution where other remedies (e.g., § 1983) exist.
• Dettelis v. Sharbaugh, 919 F.3d 161 (2d Cir. 2019): Sets out the elements of malicious prosecution under New York law.
• Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566 (2d Cir. 2005) (per curiam); Conte v. Emmons, 895 F.3d 168 (2d Cir. 2018): Explain that tortious interference cannot rest on conduct incidental to another lawful purpose and discuss constraints where law enforcement acts under color of authority.
• State Street Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158 (2d Cir. 2004): Explains abandonment of issues not raised on appeal; applied to limit issues Etere pursued (e.g., Monell and injunctive relief).
• Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978): The theory against the County was not pursued on appeal and thus deemed abandoned.
• Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004); United States v. Litwok, 678 F.3d 208 (2d Cir. 2012): Provide the abandonment/forfeiture principle applied to defendants’ failure to pursue the “special needs” theory on appeal.

Legal Reasoning

1) The 2016 stop (reasonable suspicion)

The sole articulated basis for the stop was an allegedly “covered license plate” (obscuring a TLC insignia) in violation of New York’s Vehicle and Traffic Law. The appellate panel highlighted a genuine factual dispute:

• Officer Fais’s traffic‑court supporting deposition stated he observed a covered plate.
• Etere testified that the insignia was not obstructed and submitted photographs—including a red‑light camera image—supporting his position.
• Defense counsel conceded at oral argument there was a “he‑said‑she‑said” factual conflict to be resolved at trial.

Because reasonable suspicion turns on specific, articulable facts, and the key fact (obstruction) is genuinely disputed, summary judgment was improper. The court vacated the judgment on this claim.

2) The 2017 stop (reasonable suspicion)

The undisputed facts established reasonable suspicion for the 2017 stop. Etere was idling in Nassau County, had NYC TLC plates, did not hold an NCTLC license, and the officer expressly articulated suspicion that he was operating for‑hire in Nassau County. Under the then‑effective Ordinance 155‑2014, operating a for‑hire vehicle in Nassau County without an NCTLC license was prohibited. The court affirmed summary judgment on the reasonableness of the stop.

3) The cell‑phone searches (Riley analysis required)

The district court erred by effectively collapsing the analysis of the phone searches into the validity of the stops. Riley and its Second Circuit progeny require a warrant (or a valid exception) to search the digital contents of a cell phone. The panel therefore remanded for:

• A distinct Fourth Amendment analysis of each phone search, including:
  • Whether Etere voluntarily consented under the totality of the circumstances (O’Brien), given his testimony that consent followed threats of arrest for obstruction (2016) and threats of impoundment and multiple tickets (2017).
  • Whether any other narrow exception to the warrant requirement applies.
  • Whether a “diminished expectation of privacy” associated with heavily regulated for‑hire driving (cf. Statharos) affects this analysis—and how that squares with Riley’s robust privacy protections for digital data.
• Consideration of qualified immunity on this record only after the above analysis is completed.

Notably, defendants did not pursue on appeal their “special needs” theory (argued below), and the panel treated that argument as abandoned and lost. This significantly narrows the potential justifications for the searches on remand.

4) New York constitutional claim (Art. I, § 12)

Because § 1983 provides an available federal remedy, a standalone damages claim under the New York Constitution is unavailable. The Second Circuit affirmed summary judgment on this basis, applying the narrowness of such state constitutional torts recognized in Brown and its progeny.

5) Malicious prosecution (New York common law)

To prevail, a plaintiff must show (1) initiation or continuation of a criminal proceeding, (2) favorable termination, (3) lack of probable cause, and (4) malice. The defendants did not dispute that traffic citations can qualify as “criminal proceedings,” and the panel assumed the point without deciding it.

• 2016 citation: Because reasonable suspicion for the stop is genuinely disputed, the record does not establish probable cause as a matter of law. The dismissal of the 2016 ticket is undisputedly a favorable termination. Summary judgment was vacated.
• 2017 citations: The probable‑cause defense hinges on whether the phone search that produced the evidence of in‑County operation was permissible. The district court also did not sufficiently analyze “favorable termination” given a fine held in abeyance pending this suit. Both issues require remand.

6) Tortious interference with contract

Etere claimed that Officer Fais intentionally interfered with his Uber contract by terminating an active ride to search the trip history. A tortious interference claim requires a valid contract, knowledge, and intentional, improper interference (and cannot rest on conduct incidental to another lawful purpose). The district court dismissed the claim on the premise that the stop—and by extension the interference—was lawful. Because the constitutionality of the phone search (and thus the lawfulness of terminating the trip to perform it) remains unresolved, the Second Circuit vacated summary judgment and remanded this claim as well.

7) Qualified immunity

The district court’s qualified‑immunity ruling depended on its probable‑cause findings and its assumption that the phone searches were lawful. With those predicates vacated, the qualified‑immunity analysis must be redone after the Riley/consent analysis on remand.

Impact and Implications

• For law enforcement and regulators:
  • This order underscores that officers may not short‑circuit Riley by treating reasonable suspicion for a stop as authority to search a ride‑hail driver’s phone and app data. Independent warrant or exception analysis is mandatory.
  • Consent obtained under threats of arrest, impoundment, or multiple tickets requires careful scrutiny. Agencies should review training and policies on digital searches during roadside enforcement.
  • While the panel acknowledged the “heavily regulated” nature of the taxi/for‑hire sector, it did not bless a categorical privacy reduction for smartphones. Any regulatory rationale must be reconciled with Riley’s strong digital privacy protections.
• For ride‑hail drivers and platforms:
  • Drivers retain robust privacy rights in their phones and app data. Officers generally need a warrant or voluntary consent.
  • Operational choices—such as displaying NYC TLC plates in another county—can furnish reasonable suspicion for a stop if local licensure is required, even absent observed passenger pickup.
  • Platform operations (e.g., trip termination mechanics) can intersect with tort exposure; forced termination to facilitate a search may support tortious interference claims if the underlying search is unlawful.
• For litigators and courts:
  • Riley analyses must be conducted discretely, with factual development on voluntariness of consent and any asserted exceptions.
  • Malicious prosecution probable cause may depend on the permissibility of the search that generated the charging evidence; the panel directs district courts to address that linkage explicitly.
  • Summary judgment on traffic stops demands rigorous attention to factual disputes (e.g., competing photographic evidence vs. officer statements).

Complex Concepts Simplified

• Summary Order: A nonprecedential appellate disposition. It may be cited (with proper notation), but it does not bind future panels.
• Summary Judgment: A case is resolved without trial when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Courts view evidence in the light most favorable to the non‑movant.
• Reasonable Suspicion vs. Probable Cause:
  • Reasonable suspicion: Specific, articulable facts suggesting a person is engaged in wrongdoing; sufficient for a stop/detention.
  • Probable cause: A fair probability that a person committed a violation; required for charges and often for searches (absent a warrant or exception).
• Riley Rule: Digital data on a phone is protected; officers generally need a warrant to search it, even after a lawful arrest or stop, unless a valid exception applies.
• Consent to Search: Must be voluntary under the totality of circumstances; threats or coercion can negate voluntariness.
• Special Needs Exception: A narrow warrant exception for searches serving needs beyond regular law enforcement (e.g., administrative safety). Here, that theory was abandoned on appeal by the defendants.
• Diminished Expectation of Privacy in Regulated Industries: Participants in heavily regulated fields may have reduced privacy in certain regulated information. Whether that principle extends to smartphone app data of ride‑hail drivers remains an open question post‑Riley.
• Malicious Prosecution: A tort requiring initiation of a criminal proceeding, favorable termination, absence of probable cause, and malice.
• Tortious Interference with Contract: Liability for intentionally and improperly disrupting a known, valid contract; no liability if the interference is merely incidental to a lawful act.
• Qualified Immunity: Shields officials from damages unless they violated a constitutional right that was clearly established at the time; its application depends on the facts and clearly established law.
• Abandonment on Appeal: Issues not raised in the appellate briefs are generally deemed abandoned and cannot support affirmance or reversal.

Unresolved Questions on Remand

• 2016 stop: Was the TLC insignia actually obstructed? A jury may need to resolve conflicting evidence.
• Consent: Did Etere voluntarily consent to each phone search, or was his consent coerced by threats of arrest, impoundment, or multiple tickets?
• Exceptions: Do any other warrant exceptions apply to the phone searches, consistent with Riley?
• Regulatory Privacy: Does participation in a heavily regulated for‑hire market meaningfully diminish a driver’s privacy interest in Uber app trip data on a personal phone?
• 2017 malicious prosecution: Was there a favorable termination? How does the fine held in abeyance affect that element? And does probable cause exist independent of any unlawfully obtained phone data?
• Tortious interference: If the phone search was unlawful, was the termination of an active trip an intentional and improper interference not incidental to a lawful purpose?
• Qualified immunity: In light of Riley (clearly established by 2014), do the particular facts and the regulatory environment nonetheless entitle the officers to qualified immunity?

Conclusion

The Second Circuit’s nonprecedential decision in Etere v. Nassau County reinforces a critical point in modern policing: the constitutionality of a traffic stop does not determine the constitutionality of a smartphone search conducted during that stop. Under Riley and Second Circuit law, digital searches require their own warrant or a valid exception grounded in voluntary consent or other narrow doctrines. By vacating summary judgment on the cell‑phone searches and the claims that flow from them (malicious prosecution, tortious interference, and qualified immunity), the panel ensures that district courts conduct the necessary, fact‑intensive inquiries that respect the heightened privacy interests in digital data and the realities of ride‑hail regulation.

While the order affirms that visible indicia of for‑hire operations can supply reasonable suspicion for a stop under local licensing regimes, it also signals caution: regulatory oversight does not automatically diminish constitutional safeguards for personal smartphones and app data. Going forward, both enforcement agencies and ride‑hail participants should calibrate their conduct and policies to these principles, anticipating that courts will demand rigorous, separate justification before approving searches of digital devices encountered during traffic enforcement.

Finally, practitioners should note the procedural lessons: preserve and brief all theories on appeal (e.g., “special needs”), avoid collapsing distinct Fourth Amendment analyses, and build a record on voluntariness, probable cause, and termination elements when litigating related tort claims. Even without precedential effect, this Summary Order provides a roadmap for how courts in the Second Circuit are likely to scrutinize similar encounters at the intersection of traffic policing, ride‑hail regulation, and digital privacy.