When can cops search cellphones? Supreme Court to hear cases

The US Supreme Court will hear two cases Tuesday that deal with police searching an arrestee's cellphone without a warrant. Lower courts have disagreed on whether that is constitutional.

The US Supreme Court on Tuesday takes up two cases testing whether the police, after placing someone under arrest, are free to examine the full contents of the arrestee’s cellphone without first obtaining a search warrant.

Two statistics illustrate the broad national implications of a ruling by the high court.

1. Ninety percent of Americans own a cell phone.
2. Roughly 12 million Americans are arrested each year.

The case arrives at the court at a time of growing national unease about secret government programs designed to collect and store massive amounts of information about Americans through various forms of digital surveillance.

But the case also arises at a time of continuing concern about the threat from terrorism and crime. Warrantless cellphone searches can help quickly solve crimes and, perhaps, save lives.

“This court has long confirmed that officers possess ‘unqualified authority’ to search the person of an arrestee and any objects or containers found on his person for evidence of a crime,” US Solicitor General Donald Verrilli wrote in his brief to the court.

He said such searches are justified by important interests of law enforcement in gathering evidence of crime during the crucial period following an arrest.

If officers don’t act swiftly, the digital content of a cellphone could be concealed or destroyed during the extra time it would take to obtain a warrant from a neutral judge.

Others say there is no reason law enforcement officials couldn’t obtain a warrant before conducting any search of the contents of a cellphone.

Once seized, the phone could be disabled by removing the battery and placing it in a device to shield it from outside transmissions. That would secure the phone and any crime-revealing content for the hour or two it would take to justify to a judge that the cellphone search was not an unreasonable invasion of the phone owner’s privacy.

The Obama administration and the California Attorney General’s Office are urging the court to endorse a bright-line rule that would allow police to search the full content of any cellphone, tablet, or laptop computer being carried by anyone arrested by authorities for any reason.

Critics of this approach say cellphones, particularly so-called smart phones, and other electronic devices increasingly hold or provide access to the most private details of a person’s life – including personal photos, videos, messages, names of friends and associates, banking and financial information, and medical records, among others.  

“The government asks this court to transform the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement into a blanket rule that would allow police carte blanche access to this information as a matter of right,” said Judith Mizner of the Boston Federal Defender Office in her brief to the court.

She said such a ruling would grant local, state, and federal authorities a power “that is virtually limitless and makes no distinction between a weapon, a bag, a cigarette pack, a cell phone, a tablet, a laptop computer, or any other item a person may carry.”

“Under the government’s all-encompassing view, everyone arrested with a cell phone or tablet computer is automatically subject to a search of any and all aspects of their lives contained in that personal electronic device – regardless of the purpose of the arrest,” Ms. Mizner wrote.

“The Fourth Amendment does not authorize such an unprecedented ability to pry into the most private matters of any person arrested for any violation of law,” she said.

Stanford Law professor Jeffrey Fisher said in his brief that the Framers of the Constitution included a prohibition against unreasonable searches in the Bill of Rights to prevent “general warrants” that had authorized British authorities in colonial America to enter a home and examine the owner’s private papers for evidence of a crime.

“Searching through a smart phone’s text, photo, and video files would be the modern equivalent of such a general search,” he wrote.

“Americans use smart phones to generate and store a vast array of their most sensitive thoughts, communications, and expressive material,” he added.

“Because the core purpose of the Fourth Amendment has always been to safeguard such personal and professional information from exploratory searches, this court should hold that even when officers seize smart phones incident to lawful arrests, they may not search the phones’ digital contents without first obtaining a warrant,” Professor Fisher said.

The high court is examining the issue through the lens of two criminal cases; a state prosecution of an alleged criminal gang member in San Diego, and a federal prosecution of an alleged crack cocaine dealer in Boston.

In the Boston case, Brima Wurie was arrested after a Boston police officer watched him complete an apparent drug sale. While in custody at the police station, officers noticed one of Mr. Wurie’s two cellphones received repeated calls from a number identified as “my house.”

Investigators accessed the phone’s call log to obtain the phone number for “my house.” They used a reverse directory to identify an address in South Boston associated with the phone number.

The officers then obtained a warrant to search the South Boston location. There they found crack cocaine, marijuana, cash, and a firearm with ammunition.

Wurie was convicted and sentenced to 22 years in prison. His lawyer challenged the conviction on grounds that the police conducted an illegal search of Wurie’s cellphone.

A federal appeals court agreed. In vacating a portion of his conviction, the judges rejected a government argument that the warrantless search of Wurie’s cellphone was justified by the need to prevent the destruction of data on the phone while he was in police custody.

The appeals court said the government’s concern was merely theoretical and that it did not outweigh the “significant privacy implications inherent in cell phone data searches.”

The other case involves David Riley, a suspected San Diego criminal gang member.

Mr. Riley was stopped by police for driving with expired tags and a suspended license. While impounding his car, police discovered two concealed firearms.

Riley was placed under arrest. After seizing and examining his cellphone, the arresting officer noticed several text entries suggesting to the officer that Riley was associated with a criminal gang.

The officer notified a detective who specializes in gang investigations. The detective then conducted a more detailed examination of the contents of Riley’s phone and found photos, video, and text information that police said linked Riley to a shooting incident three weeks earlier.

Based in large part on the information obtained from the phone, Riley was charged and convicted of assault with a semiautomatic firearm and attempted murder. He was also found guilty of committing a crime for the benefit of a criminal street gang. He was sentenced to 15 years to life in prison.

A state appeals court upheld the conviction based on an earlier ruling by the California Supreme Court that police are entitled to conduct a warrantless search of items and containers found on an individual during an arrest – including a cellphone.

Critics of the ruling say that the rationale for allowing police to conduct a warrantless search of items found during an arrest is based on two prime law enforcement interests – to protect officer safety by locating any potential weapons and to preserve any evidence of crime.

Neither justification applies to a search of the contents of a cellphone they say. 

“Unlike physical items inside a container, the digital contents of a smart phone are categorically incapable of threatening officer safety,” Fisher says.

“And once the police have seized and secured a smart phone, there is no risk that the arrestee might destroy or alter its digital content,” he said.

Fisher said any threat that a third party might seek to alter the contents of a seized cellphone could be defeated by preventing the phone from receiving any signal during the time it takes to decide to obtain a search warrant.

The California Attorney General’s Office defends the police practice of searching cellphones without a warrant. “The law has long recognized that it is reasonable for police to search an individual they arrest, and to seize and examine personal effects discovered during such a search,” California Deputy Attorney General Christine Levingston Bergman wrote in her brief to the court.

“This categorical approach provides clear guidance and a practical rule for operation in the field,” she said.

She said seizing a cellphone and examining the contents was not substantially different from a police officer searching the wallet, address book, or personal papers being carried by a person at the time of arrest.

“While technology has increased the amount of information an individual may practically choose to carry, neither the form nor the volume of the information at issue here provides a sound basis for redrawing clearly established Fourth Amendment lines, or reveals any special of unjustified invasion of [an individual’s] privacy interests,” Ms. Bergman wrote.

“Here the facts reflect only solid police work leading to a sound and just result,” she said.

In his brief, Solicitor General Verrilli noted that arrestees have a diminished expectation of privacy and should not benefit by using of high-tech devices.

“Evidence of crime should not be insulated from traditional review because the arrestee maintains it in a technologically sophisticated form,” Verrilli said.

The cases are Riley v. California (13-132), and US v. Wurie (13-212).

A decision is expected by late June.