U.S. Supreme Court to weigh cell phone searches by police

WASHINGTON Fri Jan 17, 2014 4:10pm EST

News microphones wait to capture reactions from U.S. Supreme Court rulings outside the court building in Washington, June 25, 2013. REUTERS/Jonathan Ernst

News microphones wait to capture reactions from U.S. Supreme Court rulings outside the court building in Washington, June 25, 2013.

Credit: Reuters/Jonathan Ernst

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WASHINGTON (Reuters) - The U.S. Supreme Court agreed on Friday to decide whether police can search an arrested criminal suspect's cell phone without a warrant in two cases that showcase how the courts are wrestling to keep up with rapid technological advances.

Taking up cases from California and Massachusetts arising from criminal prosecutions that used evidence obtained without a warrant, the high court will wade into how to apply older court precedent, which allows police to search items carried by a defendant at the time of arrest, to cell phones.

Cell phones have evolved from devices used exclusively to make calls into gadgets that now contain a bounty of personal information about the owner.

The legal question before the justices is whether a search for such information after a defendant is arrested violates the Fourth Amendment of the U.S. Constitution, which bans unreasonable searches. The outcome would determine whether prosecutors in such circumstances could submit evidence gleaned from cell phones in court.

Digital rights activists have sounded the alarm about the amount of personal data the government can now easily access, not just in the criminal context, but also in relation to national security surveillance programs.

President Barack Obama on Friday announced plans to rein in the vast collection of Americans' phone data in a series of limited reforms prompted by disclosures by former National Security Agency contractor Edward Snowden about the sweep of U.S. eavesdropping activities.

Stanford Law School professor Jeffrey Fisher, who represents one of the defendants, said in court papers that it was important for the high court to decide the issue.

"In light of the frequency with which people are arrested with cell phones and the judiciary's confusion over whether the police may search the digital contents of those phones, this court's intervention is critical," Fisher said.

According to a 2013 report by the Pew Research Center, 91 percent of adult Americans have a cell phone, more than a half of which are smartphones that can connect to the Internet and contain personal data from social media websites and other sources.

Under court precedent, police are permitted to search at the time of an arrest without a warrant, primarily to ensure the defendant is not armed and to secure evidence that could otherwise be destroyed. In the past, it has applied to such items as wallets, calendars, address books and diaries.

In the case involving Fisher's client, David Riley was convicted of three charges relating to an August 2009 incident in San Diego in which shots were fired at an occupied vehicle.

Prosecutors linked him to the crime in part due to a photograph on his smartphone that showed him posing in front of a car similar to one seen at the crime scene. The photograph was shown to the jury at trial, as were videos that showed Riley making gang-related comments.

Police searched the phone after pulling over Riley's car for having expired tags 20 days after the shooting. Riley sought the high court's review after his convictions were upheld by a state appeals court in California.

MASSACHUSETTS CASE

In the other case, the federal government appealed after an appeals court threw out two of three drugs and firearms counts on which Brima Wurie had been convicted by a jury in Massachusetts.

The Boston-based 1st U.S. Circuit Court of Appeals said in a May 2013 ruling that police could not search Wurie's phone without a warrant after the September 2007 arrest for suspected drug dealing.

One major difference between the cases is that Wurie's phone, unlike Riley's, is not a smartphone. Officers used the phone only to search the phone log. They were able to find a phone number that took them to Wurie's house in Boston, where drugs, a gun and cash were found.

The Electronic Frontier Foundation, a digital civil rights group based in San Francisco, urged the court to hear the case in a friend-of-the-court brief.

"I think it's another opportunity for the court to decide how changes in technology implicate the Fourth Amendment," one of the group's lawyers, Hanni Fakhoury, said in an interview.

Fakhoury, a former federal public defender, said that searches of cell phones upon arrest are routine in the vast majority of jurisdictions nationwide.

The U.S. Justice Department defended the practice in its brief urging the court to hear the Wurie case. Government lawyers say searching a cell phone is no different than searching other items commonly found on a person at the time of arrest.

A prohibition against the searches would be particularly troublesome to prosecutors because of "the ubiquity of cell phone use by drug traffickers and other serious offenders," the government lawyers said.

The court will hear oral arguments in April and issue rulings by the end of June. The cases are Riley v. California, 13-132 and U.S. v. Wurie, 13-212.

(Reporting by Lawrence Hurley; Editing by Will Dunham and James Dalgleish)

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Comments (14)
brotherkenny4 wrote:
Simply call everyone a terrorist and then you can search, arrest and imprison without trial and without charge. This way we can lock up a bunch of people and make money, and then we claim to the tax payer it is for their protection. We have 25% of the worlds prison population and we could easily have twice that amount without the american people even questioning it. They’re too busy learning reality from reality TV.

Jan 17, 2014 4:02pm EST  --  Report as abuse
Burns0011 wrote:
If you ‘lock’ your phone with a code when it is not in use, the police *have* to get a warrant. If you ‘lock’ your phone with a fingerprint, the police do *not* have to get a warrant.

Your fingerprint is considered ‘an identifying mark’ and longstanding precedent allows the police to gather your fingerprints for any purpose incident to an arrest. This now includes unlocking your phone.

Something you know, however, like a password or passcode, is something the police have to get a warrant for if it isn’t disclosed voluntarily.

The question before the court is ‘Are the police permitted to search cell phones incident to arrest under the exigent circumstances doctrine and/or the plain view doctrine?’ It’ll be an important ruling that defines how electronic devices are viewed; as publicly accessible devices where there is no expectation of privacy, or as devices that hold private data that should not be publicly accessible and thus require a warrant.

Jan 17, 2014 4:26pm EST  --  Report as abuse
AlkalineState wrote:
Without a warrant, can a cop legally walk up to you, take your cell phone and look through its records or not? And what if they want your voicemail PIN? Do you have to give it to them? Your email is now part of your phone. Do they have unfettered access to that on the street as well? Your paypal account? Bank apps?

A phone is never just a phone now. Cops can get a warrant if they want phones.

Jan 17, 2014 5:12pm EST  --  Report as abuse
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