Should police be allowed to search your smartphone
Argued that smartphones are covered by the fourth amendment, tomorrow the supreme court will hear a pair of cases that will help argue that smartphones and tablets should fall under that category,...
By: KOCO 5 News
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STORY HIGHLIGHTS
Editor's note: Brianne Gorod is appellate counsel at the Constitutional Accountability Center, a progressive law firm and think tank. Gorod is a former law clerk to Supreme Court Justice Stephen Breyer and was an attorney-adviser in the Justice Department's Office of Legal Counsel. She is one of the authors of her firm's amicus brief in Riley v. California and United States v. Wurie, two cell phone privacy cases before the U.S. Supreme Court. The opinions expressed in this commentary are solely those of the author.
(CNN) -- It won't surprise anyone that Justice Antonin Scalia wrote a scathing dissent in a Supreme Court case that came down last week. But it might surprise some people that three members of the court's so-called liberal wing joined him.
Scalia argued that searching the car of Prado Navarette, pulled over on suspicion of drunken driving, violated the Fourth Amendment's protections against unreasonable searches and seizures. Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor agreed.
This seemingly idiosyncratic lineup is a developing bloc in Fourth Amendment cases, and it's one to keep any eye on as the court hears two even bigger such cases Tuesday. In Riley v. California and United States v. Wurie, the court will consider whether the police may search the contents of an arrestee's cell phone without a warrant. This means that if you get arrested for jaywalking or littering (and in some places, you can be), the police can search your smartphone -- and everything on it.
There should be little doubt about what Scalia will say about these searches. He has become a regular champion of the Fourth Amendments protections against "unreasonable searches and seizures." In Navarette v. California, Scalia disagreed with the court's conclusion that the police could lawfully stop a car after a woman anonymously called 911 and reported that the car had driven her off the road. Scalia wrote that such stops were not the constitutional framers' concept of a "people secure from unreasonable searches and seizures."
And in Maryland v. King, a case decided last term, Scalia disagreed with the court's conclusion that the police may lawfully take a cheek swab of someone's DNA after he or she has been arrested for a serious offense. He expressed "doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."
Those proud men adopted the Fourth Amendment in large part to respond to the British use of "general warrants." These warrants were not specific about the people or items to be searched and thus gave the government broad discretion to search people's homes and the personal papers and effects within. The Fourth Amendment was adopted to ensure the American people would not be subject to such broad searches.
As Scalia put it simply in the King case, "suspicionless searches are never allowed if their principal end is ordinary crime-solving." That's precisely why the police should not be able to search the modern-day equivalent of one's "papers and effects" -- the contents of one's cell phone -- without a warrant.
Fortunately, there's reason to think that Scalia won't be on the losing side of this one. To start, searches of cell phones have the potential to be far more invasive than the searches in Navarette and King. In Navarette, the search was a brief traffic stop. Even the search in King -- a light swabbing of the cheek -- while more physically invasive, does not reveal all of a person's most private communications and the intimate details of one's life the way searches of a smart phone can.
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Today the Supreme Courtis hearing two cases on law enforcements ability to search a persons cellphone without a warrant. It is an important decision in a time where a hand-size device can contain troves of personal data, some of which may or may not be pertinent to a case.
The decisions boil down to the Fourth Amendment: What are unreasonable searches and seizures?
The decision could affect a wide swath of the population. The New York Times notes that 12 million people are arrested every year, often for minor offenses, and that about 90 percent of Americans have cellphones.
Currently, the courts allow law enforcement to do warrantless searches when a person is arrested. For example, if someone is pulled over and a cop has probable cause he might check the car. This is often justified as a way to ensure police safety and avoid the destruction of evidence.
In its entirety the Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
But what about a cellphone? Can a cop flip through your contacts, or browser history or Dropbox without a warrant? Are those papers or effects, or not?
The two cases being heard are on opposite ends of the spectrum. The first is Riley v. California. In 2009, David L. Riley had an expired car registration, and was pulled over in San Diego. Police also found two loaded guns and text messages that associated him with a gang. A further search of the phone linked him to an attempted murder. He was convicted and received 15 years in prison.
Both the guns and phone were found without a warrant; a California appeals court ruled that the search was like going through a persons wallet or address book and did not require one.
The second case isUnited States v. Wurie.Brima Wurie was arrested in Boston in 2007 on drug and gun charges. Officers searched his flip-phones call log without a warrant. A Boston federal appeals court threw out the cellphone records as evidence. Judge Norman H. Stahl wrote, Today, many Americans store their most personal papers and effects in electronic format on a cellphone, carried on the person.
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Others say there must be a different standard because of the sheer amount of data on and available through cellphones. In February, for instance, the Texas Court of Criminal Appeals suppressed evidence found on the phone of a high school student who was arrested on charges of causing a disturbance on a school bus. "Searching a person's cellphone," the court said, "is like searching his home desk, computer, bank vault and medicine cabinet all at once."
The justices are not always savvy about technology. At last week's argument over whether an Internet streaming service is lawful, Justice Antonin Scalia seemed to think HBO is a broadcast rather than a cable channel.
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But the justices can be sensitive to the implications of new technology for privacy rights, especially their own. Things did not go well for the Justice Department after one of its lawyers said at a 2011 argument that the F.B.I. was free to place GPS devices on the justices' cars. The government lost the case, against a drug dealer it had tracked for a month, by a 9-to-0 vote.
Similarly, in 2001, the court limited the use of thermal-imaging devices to peer into homes. Justice Scalia, writing for the majority, said, "It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology."
The problem in the thermal-imaging case, he wrote, was that the devices could detect not only heat lamps used to grow marijuana but also "at what hour each night the lady of the house takes her daily sauna and bath."
Searches of phones may give rise to a similar protective reaction. "It's a technology that all the justices will understand," Professor Kerr said. "They all have cellphones."
But they may not know how much information such phones can contain, including call records, messages, Internet browsing records, calendars, books, diaries, photographs and videos, to say nothing of applications that connect to financial, medical and travel records.
Adam M. Gershowitz, a professor at William & Mary Law School, noted that his iPhone tracked and stored his movements. "I just looked," he said, "and my phone shows that I arrived at work yesterday at 8:56 a.m." It also showed where and when he had lunch.
The first case to be argued Tuesday, Riley v. California, No. 13-132, arose from the arrest of David L. Riley, who was pulled over in 2009 in San Diego for having an expired registration. The police found loaded guns in his car and, on inspecting Mr. Riley's smartphone, entries they associated with a street gang.
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WASHINGTON, April 28 (UPI) -- The U.S. Supreme Court will hear two cases regarding whether police searches of cellphones should require a warrant to avoid violating the Fourth Amendment.
The Fourth Amendment prohibits law enforcement and the government from engaging in "unreasonable searches and seizures" but the Justice Department is trying to exploit an old loophole that allows a warrantless search to prevent the destruction of evidence.
The cases are among several that have tested the Constitution in the digital age. The first case, which is being heard on Tuesday, is Riley v. California. When David L. Riley was pulled over for expired registration in San Diego in 2009, police found guns in his vehicle and searched his smartphone, which contained evidence linking him to a street gang. He was arrested and convicted for attempted murder and sentenced to 15 years in prison.
In its Supreme Court brief, California claims information on cellphones "is not different in kind from wallets, address books, personal papers and other items that have long been subject to examination."
However, many argue now that smartphones carry troves of personal data including communications, banking information, health information and access to a person's social media, it needs to be protected as that information would under the Fourth Amendment.
The original judge in the second case the court will hear, United States v. Wurie, agreed with that sentiment when he threw out the evidence collected from Brima Wurie's cellphone after his call logs led to an arrest on drug and gun charges.
"Today, many Americans store their most personal papers and effects in electronic format on a cellphone, carried on the person," Judge Norman H. Stahl wrote for a divided three-judge panel.
Riley's lawyers say the solution to the police's problem is as simple as requiring them to put the phone in airplane mode while they wait for a warrant or to disrupt the signal with Faraday bags to prevent wiping.
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hide captionThe Supreme Court is hearing arguments in two cases over whether law enforcement can search cellphones obtained at an arrest without a warrant.
The Supreme Court is hearing arguments in two cases over whether law enforcement can search cellphones obtained at an arrest without a warrant.
The U.S. Supreme Court hears arguments Tuesday in two cases testing whether police can search cellphones without a warrant at the time of an arrest, be it for a traffic violation or for a felony.
The Supreme Court has interpreted the Fourth Amendment ban on unreasonable searches to require that police obtain a search warrant from a neutral judge upon a showing that there is probable cause to believe a crime has been committed. The warrant is to specify where the search will be conducted and the evidence being sought.
There are, however, exceptions to the warrant requirement.
The court has long allowed police to search people without a warrant at the time of their arrest. But as privacy advocate Andrew Pincus points out, until very recently, those searches were self-limiting, meaning they were limited by the amount of information an individual could carry on his person.
Now, however, because cellphones can store so much information, a person can carry more than any one of the Founding Fathers had amassed in a lifetime.
"The Library of Congress' entire collection of James Madison's papers is 72,000 pages," Pincus observes, adding, "he couldn't have carried them. They would have weighed 675 pounds." And, says Pincus, today's cellphones carry 100 times that much information.
Indeed, the iPhone 5 in its smallest storage version keeps 800 million words of text, Pincus says. That's enough to fill more than a football field's length of books, or over 8,000 photos, 260,000 private voice mails and hundreds of home videos.
"It's misleading to even think of them as phones," says George Washington University professor Orin Kerr, an expert on technology and the law. They are "general purpose computers" that have a bunch of apps, one of which is the telephone function.
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Weighing The Risks Of Warrantless Phone Searches During Arrests
By Marianne Goodland
Journal-Advocate legislative reporter
A resolution to add "electronic data" to the Colorado constitution's equivalent of the Fourth Amendment to the U.S. Constitution got unanimous support this week from a Senate committee.
The Senate Judiciary Committee on Wednesday gave a 5-0 vote to Senate Concurrent Resolution 14-002, sponsored by Sen. Greg Brophy (R-Wray) and Senate President Morgan Carroll (D-Aurora). The resolution, which asks for voter approval in November, would add "electronic data" to the list of items protected from unreasonable search and seizure in Article 2, Section 7 of the Colorado constitution.
The resolution now goes to the full Senate. Two-thirds of the Senate, or 24 votes, are needed for the resolution to go on to the House.
While the committee was unanimous in its support of SCR 2, the legal community was not. Opposition came from the Colorado Attorney General, police chiefs, and the Colorado District Attorneys' Council. The Colorado County Sheriffs' Association, the Libertarian Party and the Colorado chapter of the American Civil Liberties Union (ACLU) all spoke in favor of SCR 2.
The courts are weighing this question now, said Brophy in introducing the resolution. "It's appropriate that the Legislature also weigh in." He noted that electronic data should be private, the same as if it were stored in a file cabinet in the home. But government agencies aren't treating it that way and are looking at this data without a warrant, he explained.
Papers and other effects are already protected in the state constitution, but electronic data is the modern equivalent, Carroll said. Law enforcement should interpret it that way, but they don't always do that. "There should be a reasonable expectation of privacy" for electronic data.
Carroll also noted that any data that is encrypted or password protected should be protected under the law, even when it is stored in cyberspace, or the Cloud. "I don't forego a reasonable expectation of privacy when I enter a physical public domain" such as Civic Center Park in Denver, she said. The same should apply to electronic data stored in the Cloud.
Deputy Attorney General Matthew Durkin said the resolution was unnecessary, since the state and federal constitutions already protect electronic data, even if it is not listed. Electronic data is not defined in the resolution, he said, and it could be interpreted in many different ways. Instead, citizens should rely on the judicial branch to make to make that determination, which they have done for more than 200 years.
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The Fourth Amendment is destroyed by the Roberts led Supreme Court.
In May of 2011 the SCOTUS ruled on a lower state courts decision to throw out a case of drug possession because there was no valid search warrant for the sea...
By: Paul La Bonte
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The Fourth Amendment is destroyed by the Roberts led Supreme Court. - Video
The Fourth Amendment of the U.S. Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Ultimately, these words endeavor to protect two fundamental liberty interests - the right to privacy and freedom from arbitrary invasions.
A search occurs when an expectation of privacy that society considers reasonable is infringed by a governmental employee or by an agent of the government. Private individuals who are not acting in either capacity are exempt from the Fourth Amendment prohibitions.
A seizure refers to the interference with an individual's possessory interest in property. To meet the definition of an unreasonable seizure, the property's owner must have had a reasonable expectation of privacy in the items seized. A person is seized when law enforcement personnel use physical force to restrain the person if a reasonable person in the same or a similar situation would not feel free to leave the situation. The previous owner of abandoned property cannot allege an unreasonable seizure of that abandoned property. Abandoned property is property left behind by its owner in a manner in which the owner abandons the possessory interest in the property and no longer retains a reasonable expectation of privacy with regard to the search.
The prohibition on unreasonable searches and seizures particularly affects the work of law enforcement personnel by restricting the actions that they may take in performing a criminal investigation; however, the ban also disallows unreasonable searches and seizures in the civil litigation context. Law enforcement may only conduct a search if individualized suspicion motivates the search. The Fourth Amendment prohibits generalized searches, unless extraordinary circumstances place the general public in danger.
To sue regarding an alleged Fourth Amendment violation, the plaintiff must have standing. Standing with respect to Fourth Amendment violations requires that the plaintiff have had a legitimate expectation of privacy at the searched location. A legitimate expectation of privacy must meet both the subjective and objective tests of reasonableness. The subjective test requires that the plaintiff actually and genuinely expected privacy, and the objective test requires that given the circumstances, a reasonable person in the same or a similar situation would have expected privacy as well.
The Fourteenth Amendment of the U.S. Constitution applies the Fourth Amendment's provisions against the states as well as the federal government. See Mapp v. Ohio, 367 U.S. 643 (1961).
Courts ordinarily suppress evidence obtained during an unreasonable search or seizure and offered against the accused. See Mapp v. Ohio, 367 U.S. 643 (1961). This rule, known as the exclusionary rule, applies equally to both the investigatory and accusatory stages of a criminal prosecution.
In order to avoid illegally searching or seizing the property of a suspect, law enforcement personnel typically obtain search warrants. To obtain a search warrant, law enforcement must show probable cause, must support the showing by oath or affirmation, and must describe in particularity the place they will search and the items they will seize. A judge can find probable cause only be examining the totality of the circumstances.
Different types of warrants exist. A knock-and-announce warrant requires law enforcement personnel to knock on the door of a residence and announce their identity before entering, giving the owner or occupier an opportunity to answer the door. In 2006, the U.S. Supreme Court determined that law enforcement's failure to knock or announce when in possession of a knock-and-announce warrant does not necessitate use of the exclusionary rule. See Hudson v. Michigan, 547 U.S. 586 (2006).
No knock warrants allow law enforcement personnel to enter a building or home without announcing their presence and without knocking on the door first. Courts reserve these warrants for situations in which a building's owner or occupier could destroy the sought-after evidence by the time law enforcement waits for the owner or occupier to open the door.
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Next week, the U.S. Supreme Court is expected to hear arguments over whether police can search a person's cellphone without a warrant upon arrest. That will give the justices a rare opportunity to draw a bright line about what police can do in the digital age.
The court should conclude that searching smartphones should require a warrant. That is what law enforcement needs in most cases to search a home.
More than 50 percent of Americans now carry smartphones, and those phones' search histories, photos, emails, chats and contacts offer not only a window on the owner's mind, but also can document their every step and communication.
Courts have given mixed rulings how the Fourth Amendment, which protects people from unreasonable search and seizure, applies to cellphones. The right to privacy in these cases conflicts with the important public interest in police solving and preventing crimes.
The high court will have to balance these two interests in a decision that makes sense not just for smartphones, but also for tablets, laptops and the new gadgets down the road.
"Some members of the court will certainly try to consider the place mobile devices play in modern life," said Jennifer Granick, director of civil liberties at the Stanford Center for Internet and Society.
The justices' ruling will involve two cases. In 2007, Massachusetts police searching a man's rudimentary flip phone noticed a phone number that led to the suspect's home where they found drugs, cash and guns. The 1st Circuit Court of Appeals agreed that the search violated his Fourth Amendment rights. The government is appealing the decision.
In 2009, San Diego police stopped David Riley for expired registration tags. A search of his smartphone revealed images tying him to a gang shooting and other evidence. Convicted of attempted murder and serving a 15-year sentence, Riley has challenged the evidence police found on his cellphone. In a 5-2 decision, the California Supreme Court upheld the cellphone search in the case.
In taking on the Riley case, the high court said it would decide the narrow question of whether evidence admitted at Riley's trial as part of the smartphone search violated the Fourth Amendment.
Legislative attempts to clarify the rules in California have not succeeded. In 2011, state Sen. Mark Leno, D-San Francisco, proposed a bill that would have required a warrant to search cellphones. Gov. Jerry Brown vetoed it.
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Quinn: Supreme Court should clarify Fourth Amendment rights in the digital age