TRI In The News
Civil Rights Group Seeks End To Warrantless Cellphone Searches
From Mint Press News
Does the Fourth Amendment protect Americans from the unreasonable search and seizure of a cellphone, especially when the cellphone in question presents no danger to the arresting officer, arrestee or any other member of the public, and there is no indication that potentially incriminating evidence on the cellphone may be destroyed?
It’s a question that has come up in recent years as law enforcement officials began to routinely search individuals’ smartphones after they were arrested, resulting in many Americans facing additional charges for crimes that the police otherwise wouldn’t have known about.
The U.S. Supreme Court agreed to hear a case on the matter in January, and it is expected to hand down its decision in June.
Oral arguments were heard in the case in April, but privacy advocates continue to petition the court to stop the erosion of civil liberties in the United States, particularly those related to privacy.
The issue of whether officers have legal ground to search an arrestee’s cellphone is a tricky one. The Supreme Court ruled in 1973 in the case known as United States v. Robinson, that law enforcement can open and search all items found on an arrestee’s person, even if those items are in a closed container — wallets, calendars, address books and diaries, among others — and the officer has no reason to believe that the container holds illegal content.
But many privacy and digital rights advocates and groups such as the Rutherford Institute, a nonprofit civil liberties organization, are pushing back, arguing that when this decision was made in 1973, smartphones did not yet exist. They have urged the court to make warrantless searches of cellphones illegal.
“Although U.S. v. Robinson allows police to search an arrestee and items associated with him incident to the arrest, it and other Supreme Court cases still adhered to the principle that searches incident to an arrest are justified by the need to (1) protect the safety of the arresting officers and (2) preserve evidence of the crime that might be destroyed,” John W. Whitehead, president of The Rutherford Institute, told MintPress News.
In response to these cases and the Supreme Court’s decision to hear them, Whitehead, along with affiliate attorneys Anand Agneshwar, Robert B. Sobelman and Carl S. Nadler of Arnold & Porter, LLP, argued in an amicus brief submitted by the Rutherford Institute to the Supreme Court, that warrantless searches of cellphones are troubling for a number of reasons. They also outlined why the court should rule that warrantless searches are illegal and a violation of Americans’ rights.
For example, when it comes to cellphones, Whitehead said a search is not needed to protect an officer, “nor is it likely that any relevant evidence on a cellphone will be destroyed once the phone is in the possession of police.” He also pointed out that the information obtained from a cellphone is not limited to information regarding a particular crime or case, which could also further incriminate a person.
Even the Los Angeles Times editorial board has encouraged the justices to rule that the search of a cellphone requires a warrant, since these devices contain vast amounts of personal information.
“Police long have been allowed to conduct warrantless searches of people they arrest because of the possibility that a suspect might have a concealed weapon or try to destroy evidence,” the editorial board wrote in January. “But in 1973, the Supreme Court unjustifiably held that such searches were legal even when there was no probability that weapons or evidence would be found. The invasion of privacy permitted by that ruling multiplies exponentially when the object searched is a smartphone.”
The editorial board continued, arguing, “When the framers of the Constitution wrote of the ‘right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches,’ they couldn’t have foreseen that ‘papers and effects’ would be housed in a palm-sized device. But the court should rule that the principle of privacy is the same.”
Cops vs. cellphones
The case brought before the Supreme Court contains two examples of Americans being charged with more serious offenses after police searched their cellphones following an arrest. The first is the case of David Riley, a California resident who was pulled over by an officer from the San Diego Police Department on Aug. 22, 2009 for driving with an expired license plate.
The officer searched Riley’s vehicle during the traffic stop and found loaded firearms, which resulted in Riley’s arrest. While searching Riley, the officer discovered Riley’s smartphone. The officer began to go through the phone. By looking at messages, contacts, photos and videos on the phone, the officer learned that Riley was connected with gangs and other known gang members.
Riley’s lawyers argued that the evidence found on Riley’s phone should not be allowed in court. After police found a photo of Riley with a car that was reportedly at the scene of a murder that had taken place several weeks prior to his arrest, his lawyers argued, this prompted officers to charge him with involvement in a gang-related shooting.
Unfortunately, Riley’s request was denied. He was convicted for his involvement in crimes the police officers may have never known about had they not searched his phone. Riley filed an appeal, but the California State Supreme Court upheld the lower court’s decision.
The other case is that of Massachusetts resident Brima Wurie who was arrested in 2007 on suspicions of selling drugs after police found crack cocaine and $1,275 in cash in his pockets.
Police also found two phones on Wurie. Based on the call log on one of the phones, as well as its GPS capability, they were able to locate Wurie’s home, which they searched without a warrant.
Drugs, cash and a firearm were found at Wurie’s Boston home. In 2011, a jury found him guilty of distribution of crack cocaine, possessing additional crack cocaine with intent to distribute and being a felon-in-possession of a firearm. He moved to suppress the evidence found at his home and every other piece of evidence that police obtained from his cellphone, but the district court denied the motion. In 2013, however, the U.S. Court of Appeals for the First Circuit reversed the lower court’s decision and said the search of Wurie’s cellphone was not justified.
“Cellphones hold a place of central importance in modern day life, in large part because they contain a variety of personal information that users can access on the go,” said Whitehead, who is also the author of “A Government of Wolves: The Emerging American Police State.” “While this may make life more convenient, it can also pose a serious threat to our individual privacy when our cellphones end up in the hands of government officials lacking the knowledge or scruples to abide by the Fourth Amendment’s prohibition on unreasonable searches and seizures.”
Whitehead continued, “The government has no business prying into Americans’ private affairs, whether that prying is done by way of physical searches of our cellphones, remotely through surveillance of our phone calls and Internet activities, or by tracking our cellphone signals to gauge our whereabouts.”
Other Rutherford Institute attorneys have also noted that although the Fourth Amendment allows police officers to search an arrestee, the search must be “strictly limited to the fundamental concerns of officer safety and preservation of evidence.” Since “[n]either of these concerns warrant the routine search of an arrestee’s cell phone by police,” the attorneys argue in the amicus brief that the “legality of a cell phone search incident to an arrest must be judged on a case-by-case basis.”
It’s hard to say where the Supreme Court will side in this case, given that in 1973, the court expanded law enforcement’s ability to search an individual. But with mounting public pressure to protect Americans from invasions of privacy — especially the privacy granted under the Fourth Amendment — it appears it would be in the public’s best interest for the court to require police officers to first obtain a warrant before they can access the information on an individual’s mobile phone.
