Phones clash with rights to privacy
Police uncovered Brima Wurie’s drug dealing during a routine arrest in Boston six years ago, thanks in part to the frequent calls from “my house” arriving on his flip-top cellphone.
David Riley’s participation in a San Diego gang shooting in 2009 was revealed after police stopped his Lexus for having expired tags, found weapons and eventually located incriminating photos and video on his smartphone.
Cellphones — owned by more than nine in 10 American adults — are at the center of a growing legal debate over privacy rights and technology, one that’s probably headed to the Supreme Court in coming months.
As the Wurie and Riley cases illustrate, your cellphone and the information it contains can be used against you. At issue is whether police can search mobile devices upon arrest without first obtaining a warrant — and whether information inside, from email to the Internet, is fair game.
For the court, it’s the latest in a string of Fourth Amendment search and seizure cases involving society’s innovations.
“Every generation has its new technologies that raise novel Fourth Amendment questions,” said Orin Kerr, an expert on computer crime law at George Washington University Law School.
The facts about what police can do when making an arrest have been clear for 40 years: They can search the person being arrested and what’s within reach.
“It is settled law that a custodial arrest based on probable cause justifies a full search of an arrestee and any items found on him — including items such as wallets, calendars, address books, pagers and pocket diaries,” the Obama administration argues in its petition asking the court to hear United States v. Wurie.
Cellphones and, increasingly, smartphones that mimic computers have clouded those facts. At least six federal or state appellate courts have ruled that they are fair game; at least three others have said search warrants are required.
In the past few weeks, the Supreme Court has been asked to hear both the California and Massachusetts cases, which could help restore clarity in Fourth Amendment search and seizure law.
In the Wurie case, the Obama administration urges the court to reverse a 1st Circuit appeals court decision against the police search.
“Over the last decade, cellphones have become ubiquitous in the United States,” the Justice Department’s petition says.
“Inexpensive, disposable phones that are difficult to trace are particularly common in drug-trafficking conspiracies.”
In Riley v. California, lawyers for the appealing defendant argue that cellphone searches without a warrant are unreasonable.
“A cellphone nowadays is a portal into our most sensitive information and the most private aspects of our lives,” said Jeffrey Fisher, lead attorney for David Riley and codirector of Stanford University’s Supreme Court Litigation Clinic. “It’s also a device that is the gateway to your office, health records, bank records.”