The Supreme Court on Tuesday will take on the digital-age controversy over search and seizure of smartphones and other devices. In two cases coming before the court, warrantless searches of an electronic device not only provided the basis for criminal prosecutions but also strayed from the original reason for the arrests in question.
President Barack Obama’s administration and prosecutors from states across the country have lobbied for police officers to be able to search arrestees’ gadgets—at or about the time of arrest—without a warrant. Such action, however, demands an examination of the Fourth Amendment’s protection against “unreasonable searches and seizures.” If nine out of 10 American adults own mobile phones and the devices have advanced to become virtual extensions of our personal and private lives, at what point does law enforcement’s access to their call logs, photos, and cloud-hosted data become “unreasonable” invasions of constitutionally protected privacy?
Much of the attention on the two cases before the Supreme Court surrounds the government’s demands to search mobile phones, because those are the most likely device an arrestee would be carrying or handling. Yet the broad dispute should be viewed as a demand for access to all electronic devices.
“Even the government has conceded that basically, the issue is not just so they can search cell phones incident to arrest, but whether they can search any device if it is in proximity to the incident of the arrest,” said Hanni Fakhoury, an Electronic Frontier Foundation attorney.
The First US Circuit Court of Appeals ruled in one of the two cases the Supreme Court will review Tuesday. That court noted in its May opinion, which overturned a warrantless search of a mobile phone, that “the government admitted at oral argument that its interpretation of the search-incident-to-arrest exception would give law enforcement broad latitude to search any electronic device seized from a person during his lawful arrest, including a laptop computer or a tablet device such as an iPad.”
Take me to “my house”
That ruling now before the justices concerns an appeal brought on behalf of an accused Boston crack dealer sentenced to 22 years in prison following a 2007 arrest.
The police suspected Brima Wurie was selling drugs from his vehicle. They arrested Wurie, confiscated his phone, and reviewed his calling logs. According to court records, a call from “my house” repeatedly kept appearing on the phone’s external screen. Once the cops opened the phone, they saw a picture of a woman holding a baby.
Authorities traced the “my house” number and suspected that address was where a “hidden mother cache” of crack cocaine might have been stashed. What’s more, the “my house” address was different from the one Wurie supplied to police when he was arrested.
Police went to the “my house” residence and discovered the mailbox displayed Wurie’s name. A woman the police saw through the apartment’s window matched the phone’s wallpaper picture, court records show.
With a search warrant, the cops found a firearm, ammunition, marijuana, and crack cocaine inside the residence. Wurie challenged the search.
On appeal, he successfully claimed it was a breach of the Fourth Amendment. The precedent first established by the Supreme Court in 1914 that allowed warrantless searches of arrestees did not apply to electronic devices.
The First US Circuit Court of Appeals agreed. The Boston-based appeals court tossed evidence discovered in the search, resulting in two of three charges being dismissed. The appeals court ruled that “the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee’s person.”
The government appealed to the Supreme Court. Among other things, Solicitor General Donald Verrilli Jr. argued that the justices “should not deprive officers of an investigative tool that is increasingly important for preserving evidence of serious crimes based on purely imaginary fears that police officers will invoke their authority to review drug dealers’… ‘appointments with marital counselors’ or armed robbers’ ‘apps to help smokers quit.’” (Verrilli was citing examples lodged with the court by the Center for Democracy & Technology.)
Both cases before the high court have generated a slew of filings with the justices, both for and against, citing privacy or law enforcement’s needs.
The government also argued that, even if the justices disavow wanton gadget searches, the high court should at least allow the authorities to review a phone’s calling logs.
In what is the same argument being made to back the National Security Agency’s bulk telephone metadata program, the Obama administration argued that consumers have no “reasonable” expectation of privacy when it comes to their calling records.
Meanwhile, the other gadget search case to be argued before the high court on Tuesday concerns a San Diego man pulled over for driving with expired tags in 2009. The college student was also operating a vehicle with a suspended driver’s license.
David Riley was arrested, and when officers searched the Lexus he was driving, they discovered firearms concealed under the hood. The authorities also searched his Samsung Instinct M800 smartphone twice without warrants, once on the scene and again at the precinct.
Police discovered a picture taken by the phone of Riley posing with a gang member and a red Oldsmobile they believed was involved in an unsolved drive-by shooting. A ballistics test of the weapons seized from the Lexus concluded that at least one of them was used in the earlier gang shooting, according to the record.
Riley’s first trial ended in a hung jury. But Riley was convicted on a retrial—without eyewitnesses—of shooting at an occupied vehicle, attempted murder, and assault with a semiautomatic weapon.
Prosecutors showed jurors the photo they seized from Riley’s mobile phone. He was sentenced to 15 years to life in prison and appealed.
California’s top court has already allowed warrantless gadget searches upon arrest. In January, the US Supreme Court, which had not decided the issue, accepted petitions to review both Riley’s and Wurie’s cases.
Privacy advocates caution that the cases highlight the importance to encrypt or password-protect electronic devices. That would prevent cops from immediately accessing the device. Yet it’s an unsolved Fifth Amendment question of whether the authorities could legally compel an arrestee or anybody, even with a warrant, to unlock their electronic devices.
Even if the authorities could unlock an arrestee’s device via brute force or other means, the legal question becomes whether such actions have evolved beyond the initial incident-to-arrest stage. None of these outlying issues, however, are before the high court Tuesday.