Unreasonable search of cell phones: Supreme Court to decide on privacy

When the Fourth Amendment became part of the Constitution, in 1791, protecting the people “against unreasonable searches and seizures,” there was less existential uncertainty about the meaning of “persons, houses, papers, and effects.” While the amendment has evolved to permit limited warrantless search of arrested individuals, its application to new technology is unclear. On Tuesday the Supreme Court began to provide some clarity as it heard oral arguments in two cases, one state and one federal, contemplating whether the Fourth Amendment permits law enforcement to search an arrestee’s cell phone.

In Riley v. California and U.S. v. Wurie, the high court faces a raft of pragmatic and philosophical questions: Is a cell phone like any other item “incident to arrest” that can be seized in the interest of protecting police officers and preserving evidence? Or is it more like the foot locker in a suspect’s car trunk that earlier case law shields from warrantless search? Is there a difference between a smartphone and an older-model flip phone for Fourth Amendment purposes? Does an arrestee have an expectation of privacy when it comes to cell phone location data, call logs or the content of conversations?

Issues of current technology dominated oral arguments and the briefs submitted by the parties and respective amici. “There were a lot of questions about how you could fashion a rule that could be understandable by police to apply in the field and to have a clear demarcation so that people understand just what was private and what wasn’t,” said Robert Corn-Revere, a partner at Davis Wright Tremaine who attended the oral arguments and had filed on behalf of the National Press Photographers Association and other media organizations. “An arrest for expired plates or jaywalking could trigger a comprehensive search. At one point, Justice Sotomayor asked if the government’s logic would apply to searching an iPad or laptop, and the answer was ‘yes.’”

The National Association of Criminal Defense Lawyers — aligned with Corn-Revere’s clients, gun owners and free-speech activists in support of petitioner David Leon Riley — wrote at length in their amicus briefs about cloud computing, bank apps, storage capacity and the 91 percent of Americans who now own a cell phone. Riley, a California man, was pulled over, searched and arrested in 2009, at which point incriminating photographs and textual data from his cell phone were seized.

On the opposing side, Arizona and 15 other states’ attorneys general implored the Supreme Court to equate the privacy of handheld data with that of “information on paper or in other documentary forms.” The National Sheriffs’ Association and related law enforcement agencies argued that warrantless search of cell phones is justified in the face of “time-sensitive accessibility” features like password locks. Finding otherwise, they say, would hamstring prosecution of arrestees like Brima Wurie, the defendant from the federal case before the court — an alleged cocaine dealer searched without a warrant by Boston police officers who confiscated and mined his flip phone for data.

That the Supreme Court chose to consider Riley and Wurie separately, and in fairly specific terms — based on the evidence presented in the lower courts — may foretell narrow rulings in both. “In the Riley case, it’s a search of a smartphone and a very comprehensive search,” said Hanni Fakhoury, staff attorney at the Electronic Frontier Foundation, a friend of the court in Riley. “In Wurie, it was a flip phone and a more limited search. Some state courts have said that a limited search into the phone is OK and a more comprehensive search is not.”

Even in jurisdictions that require warrants to scour phone data, “it’s unclear how narrowly those warrants are issued,” said Kumar Rao, attorney at the Bronx Defenders in New York. “If you have a warrant to enter a home and there’s a weapon right on the table, that’s in ‘plain view’ and they can seize that, but not locked boxes. What’s in ‘plain view’ on a phone? Texts, missed calls?” Rao also worries that expansive permission to search phones would disproportionately affect low-income people of color — those who are most often stopped and arrested.

Although the Fourth Amendment is generally discussed in the criminal context, the decisions in Riley and Wurie may contribute to an evolving notion of the right to privacy. “Does the nature of an electric device, capable of carrying so much information, make a difference for the Fourth Amendment? If it does,” Fakhoury explained, “then what we’re saying is that anytime a person is arrested for any crime, the phone is fair game. That’s much broader than what the police have been permitted to do.”