Monthly Archives: April 2014

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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Should police be allowed to search your smartphone - Video

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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What Scalia knows about illegal searches

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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Fourth Amendment in the digital age: Supreme Court to decide if police can search cellphones without a warrant