Warrantless Cell Phone Search Debated

On Tuesday, April 29, the Supreme Court heard oral arguments on two cases that affect the privacy of the more than 90 percent of Americans who carry a cell phone. One of these cases is an appeal of a drug-dealing conviction from South Boston. U.S. v. Wurie, 13-212. The other is an appeal by a San Diego gang member. Riley v. California, 13-132. The issue in the cases is whether a police officer can search arrested suspects’ phones without a warrant.

In the current cases, the arrested suspects’ phones were searched at the time of their arrest. Police found evidence on their phones that led to their eventual convictions: call logs, video, and photographs.

The Fourth Amendment’s ban on unreasonable searches generally requires police to obtain a search warrant from a neutral judge, upon showing probable cause to believe that a crime has been committed. The warrant must state the evidence sought and where the search will be conducted. However, there are many exceptions to the warrant requirement. One long-standing exception is that police may search someone without a warrant at the time of his or her lawful arrest. This helps to protect officers’ safety, and prevents the destruction of evidence.

The current debate rages around the vast quantity and quality of intimate, personal information that cell phones—especially smartphones—now carry. In addition to voicemails and call logs, cell phones are portals to email, photos, calendars, video, books, movies, social media accounts, home security cameras, and more. Should all of these be open to search when someone is arrested for not wearing a seatbelt?

Proponents of the warrantless searches argue that cell phones should not have any greater protection than a wallet, billfold, or other pocket contents. They claim that speedy, warrantless cell phone searches in trafficking cases can lead officers to victims in imminent peril. Proponents argued that if police are not able to search before obtaining a warrant, remote third parties can wipe the phones’ memories or use encryption to make the phone impregnable.

Opponents argue the phones should be treated more like a home computer than a photo sleeve in a wallet, because of the quantity of personal data they contain. Justice Kagan seemed to agree, saying, “Most people carry their lives on smartphones, and that will only grow as young people take over the world.”

During oral argument, some of justices seemed to want to demonstrate their technological savvy, bringing up Facebook, Twitter, and FitBit. However, Justice Breyer acknowledged the difficulty of adjusting to ever-changing technology. He said he didn’t know what type of cell phone he owns. “I can never get into it because of the password,” he quipped.

A decision from the Supreme Court is expected by early summer. Until then, U.S. courts remain split on this issue. If you have concerns about privacy, or about the legality of a search, seizure, or arrest, contact the attorneys at Hutchins Law, P.C. today.

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