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Cell phone search cases go to privacy interests

WASHINGTON — Faced with a pair of cases raising the issue of warrantless searching of arrestees’ cell phones, the U.S. Supreme Court will again need to apply centuries-old constitutional principles to rapidly changing technologies.

The justices’ analysis of this issue could also provide important guidance as other cases addressing the scope of individuals’ expectation of privacy in the information contained in their mobile phones make their way through the courts.

“Nowadays these devices contain so much information, and pose a much greater danger to the privacy interest of most people,” said Timothy C. Kulp, a former prosecutor who now works as a criminal defense attorney at the Kulp Law Firm in Charleston, S.C.

On April 29 the justices will hear arguments in two cases that consider whether police searches of cell phones fall within the search-incident-to-arrest exception of the Fourth Amendment. U.S. v. Wurie, which involves the search of an arrestee’s flip-top cell phone to retrieve a phone number of an incoming caller, comes out of the 1st U.S. Circuit Court of Appeals. The second case, Riley v. California, involves the search of a more modern smartphone which revealed, among other things, photographs of the suspect making gang signs.

In both cases the government is urging the court to hold that searches of cell phones being carried by arrestees fall within the search-incident-to-arrest exception, primarily because of the ease with which suspects can erase data from phones before a warrant can be obtained.

“No sound reason justifies excluding [from the search-incident-to-arrest rule] cell phones, the contents of which are far more susceptible to destruction than most other evidence,” U.S. Solicitor General Donald B. Verrilli Jr. wrote in the government’s brief in Wurie.

But defendants and others who are urging the court to establish a bright line warrant requirement argue that the government’s position gives law enforcement officials far too much access to information that the Fourth Amendment was designed to protect.

What’s more, they argue, it creates an atmosphere that encourages potential abuse of the system.

“The concern is that there are all sorts of minor offenses that can potentially lead to an arrest and the subsequent search of a cell phone,” said Jessie Rossman, a staff attorney at the American Civil Liberties Union of Massachusetts in Boston. “You don’t want to have police officers making minor arrests for the purposes of doing a fishing expedition of a cell phone. You want to have a rule requiring them to get a warrant.”

These cases are coming before the court at a time where the expectation of privacy in cell phone data is changing rapidly. Modern smartphones often carry more personal data about an individual than any other device he or she may own, including banking data, information about the past and current whereabouts, private text and email conversations, photographs, videos and Internet search histories.

At the same time, people increasingly voluntarily disclose this information by, for example, sharing location data or geotagged cell phone pictures on social media sites. Some courts have held that police may obtain cell phone location data without a warrant because it does not constitute a search for Fourth Amendment purposes, although state and federal courts are split on the issue.

The tension between law enforcement’s need to gather and protect evidence and individuals’ privacy interests will only grow as technologies continue to advance, allowing more information to be stored in even smaller electronic packages and making the application of traditional Fourth Amendment principles based on property-based searches more and more difficult.

“The notion that [cell phone searches] could be container searches, that’s just freaky and bizarre,” said Kulp.

In Wurie and Riley, the applicability of the Fourth Amendment is undisputed. The issue is whether the vast amount of personal information that can be gleaned from cell phones requires that they be treated differently in a constitutional analysis than containers, desktop computers or cars.

Rossman said that the fact that cell phones tend to contain so much information makes it easier to apply traditional Fourth Amendment principles, not harder.

Further, she said that both factors used in determining if a warrantless search is justified — the need for arresting officers to protect their own safety and the need to safeguard evidence — weigh against allowing such searches of cell phones.

“Obviously a cell phone is not a weapon,” Rossman said. “And there are ways to ensure that evidence does not get wiped” while police seek a warrant.

For example, Rossman said, the phone could be confiscated and sealed in a container that prevents its contents from being remotely erased while the warrant application is pending.

Kulp pointed out that cell phones differ from other evidence that can be found on the person of an arrestee because of the average person’s expectation that their conversations — whether by phone call or text — are not going to be seen by police.

If someone sends a text message “they don’t think as if they are walking up to you in a police station lobby and talking to you” in front of officers, Kulp said.

The majority of federal courts that have considered this issue have upheld warrantless cell phone searches, with the 4th, 5th, 7th, and 10th Circuits holding that such searches fall within the exception for searches incident to arrests, although they all offer slightly different rationales. The 1st Circuit ruling in Wurie represents the opposite side of the spectrum, establishing a bright-line rule barring warrantless searches of cell phones.

Wurie raises another issue as well: conflicts with state law. In his brief, Verrilli pointed out that if the case had proceeded in Massachusetts state court, the cell phone search would have been allowed.

Decisions in Wurie and Riley are expected by the end of the term.