Supreme Court Ponders Warrantless Cell Phone Searches

US Supreme CourtU.S. Supreme Court Justices are currently struggling with the issue of warrantless cell phone searches. The arguments before the court is whether police have the right to examine the contents of cell phones found in the possession of criminal suspects.

Being considered are cases from Boston and San Diego. In the San Diego case David Leon Riley was pulled over for driving with expired tags. During a search of the car (legal) police found concealed and loaded weapons. Riley was arrested and officers seized his smartphone.  A warrantless search of the phone revealed photos and videos linking Riley to a recent gang shooting. Eventually, Riley received an extended sentence because of the gang affiliation. Lawyers for Riley argued before the court that police had overstepped their bounds by searching the phone. A lower court disagreed and allowed the search and evidence to be used in the eventual conviction. California Solicitor General Edward C. Dumont, argued that the lower court had gotten it right that there was no need for a warrant to search the cell phone. Dumont suggested there are distinct privacy difference between pictures in someone’s billfold and pictures seized from a cell phone. 

One of the questions being considered is the seriousness of the crime. Justice Elena Kagan, using a minor crime such as driving without a seatbelt as an example, questioned Dumont’s argument saying “the police could take that phone and could look at every single e-mail that person has written, including work e-mails, including e-mails to family members, very intimate communications, could look at all that person’s bank records, could look at all that person’s medical data, could look at that person’s calendar, could look at that person’s GPS and find out every place that person had been recently because that person was arrested for driving without a seat belt.” Kagan pointed out that the information found in a cell phone was far more detailed and sensitive than just a photo in billfold.

Chief Justice John Roberts questioned  the contents of apps found on smartphones and the additional privacy implications for those apps.  “Could you have a rule that the police are entitled to search those apps that, in fact, don’t have an air of privacy about them?  He also asked how a magistrate would discern what part of the smartphone could be searched?

Justice Ruth Bader Ginsburg, pointing out that if the police had seized the phone and preserved it as evidence, she asked;  “So I don’t understand why we cut the warrant out of this picture,” she said.

In the Boston case the court dealt not with a smartphone but a simple flip phone. Brima Wurie, was arrested in 2007 for selling cocaine. After the arrest, Wurie’s  phone kept receiving  calls from a number identified as “my house” on the caller ID screen. Police opened the phone and accessed the number. Using a reverse directory they were able to obtain an address which led them to get a warrant and find a stash of crack cocaine. Wurie was sentenced to 262 months in prison. His lawyers argued on appeal that the evidence should be thrown out and the court agreed.

Massachusetts Deputy Solicitor General Michael R. Dreeben argued the decision should be reversed. “The facts of this case,” Dreeben argued, “illustrate why any categorical rule that would preclude searches of cell phones incident to arrest would be inconsistent with historical practice and detrimental to law enforcement.”

Justice Kennedy asked Dreeben if he had any limits apply to this practice.  Dreeben answered that the search of cell phones “should be relevant to the crime of arrest” and said the court could articulate the rule in a way that would “prevent roving searches or speculative searches.”

Breaking it Down

Black people need to pay attention to these questions. We all have cell phones but we are not all criminals by any measure. But we have an inglorious history with the police and we have to understand what the law is saying. We have a right to refuse a search if a police officer asks, especially if you are not under arrest. We have the right against self-incrimination. So we can refuse to hand over a cellphone if asked.  But once you are under arrest things change. Legalzoom.com can give you some simple legal guidelines when you are in a situation with a police officer so you know what they can and can’t do.  In this case the Supreme Court must decide if a cell phone is searchable upon arrest.

Is the cell phone considered evidence in the crime based on the possible evidence it may contain? If that phone is searched and other evidence is discovered of additional crimes is that evidence admissible? In legal language this is known as “fruit of the poison tree.” This means that if the phone is searched and other evidence is found; was the initial search legal. If the search is deemed illegal then the evidence is inadmissible in court. It’s fruit of the poison tree.

The police have to decide if the phone was used to commit or conceal a crime. How can the police know this without searching the phone? Another question is what if one phone legally searched can lead to evidence on another phone? What about other evidence found there? Can a suspect claim the fifth amendment right against self incrimination if their phone is connected to a crime? Can they be forced to surrender it to police?

The answers to these questions must fit into the Constitution’s definition of legal search and seizure. But the founding fathers could never imagine this technology or the society we live in today. Right now police can, and do, seize property or secure a crime scene to preserve evidence. They can hold property until they can obtain a search warrant and that is the point that  Justice Ginsburg is making. If police seize a cell phone can they make a reasonable argument that the phone has evidence of a crime? If so then a search warrant is granted.

I believe that Justice Ginsburg has the right idea. Let the police seize the phone and make their argument that it has evidence. Maybe they can make the claim that the drug dealer is using the phone to sell drugs and let the magistrate decide. But what if the suspect can use remote technology to wipe all data from the phone before the warrant is executed? Is he exercising his right against self incrimination?

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