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A visitor to the Supreme Court uses his cellphone to take a photo of the court in Washington on April 29, 2014. (AP Photo, File)

Phone search? Get a warrant

Supreme Court opts for bright-line test on viewing suspect’s stored information

Maryland defense and prosecution attorneys alike welcomed Wednesday’s unanimous Supreme Court ruling that police generally may not search the cellphones of people they arrest without first getting search warrants.

Brian M. Saccenti, chief attorney of the appellate division of the Maryland Office of the Public Defender, called the law a victory for privacy in the digital age. Montgomery County State’s Attorney John McCarthy said the ruling brings legal clarity to an area of police work that had been unsettled.

The message to police about what they should do before rummaging through a cellphone’s contents following an arrest is simple, Chief Justice John G. Roberts Jr. said: “Get a warrant.”

That direct approach pleased McCarthy, who, as a prosecutor, is tasked with telling police how they must conduct investigations to avoid tainting the evidence they collect.

“In law enforcement, we welcome bright lines and clear demarcations,” McCarthy said. “A bright line like this assists us in giving direction to the police.”

Writing for the high court, Roberts said cellphones are powerful devices unlike anything else police may find on someone they arrest. Because the phones contain so much information, police must get a warrant before looking through them, Roberts added.

“Modern cellphones are not just another technical convenience,” he wrote. “With all they contain and all they may reveal, they hold for many Americans the privacies of life.”

McCarthy, a prosecutor for more than 30 years, recalled the advent of cell phones and police routinely reviewing the last 10 phone numbers dialed by the detainee to discover if he or she had a partner in crime.

Now, cellphones contain so much personal information about an individual as to require that a balance be struck between the person’s right to privacy and the needs of law enforcement, he said.

“The law is always forced with trying to keep up with changes in technology,” McCarthy said. “The court is just recognizing that change. It happens all the time. It’s just another example of recognizing that technology, especially cell phones, takes us to another place.”

Saccenti, of the public defender’s office, said Wednesday’s decision “creates an incentive for the police to refrain from just willy-nilly searching the cell phones of anyone they arrest for anything.”

“I think it’s a really good decision that recognized that cell phones are not just telephones but contain information and documents that ought to be private, such as personal correspondence, email and text messages, banking and other financial transactions and websites they might have visited,” Saccenti said. “I think the attorneys that defend people in criminal cases are certainly going to be using this holding to protect their clients’ privacy interests.”

Criminal defense attorney Barry H. Helfand said he has had many arrested clients from whom the police seized a cellphone and started “thumbing through it” at the scene.

“They use it for the basis of investigation and getting other search warrants,” added Helfand, of Barry H. Helfand P.A. in Rockville. “This [decision] is going to really slow it down.”

Another defense lawyer, J. Wyndal Gordon, said that just hours after the court’s decision he filed a motion to suppress evidence he claims the police unlawfully collected without a warrant after arresting his client for allegedly setting off a bottle bomb in a Prince George’s County movie theater.

The Obama administration and the state of California, defending the cellphone searches, said the phone should have no greater protection from a search than anything else police find in a search incident to arrest, designed to ensure officers’ safety and prevent the destruction of evidence.

The court disagreed, but left open the possibility of a different result if officers reasonably fear for their safety or the lives of others.

Justice Samuel A. Alito Jr. joined in the judgment, but wrote separately to say he would prefer elected lawmakers, not judges, decide matters of privacy protection in the 21st century.

Elected officials “are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future,” Alito said.

In the cases decided Wednesday, one defendant carried a smartphone, while the other carried an older flip phone.

The two cases arose following arrests in San Diego and Boston.

In San Diego, police found indication of gang membership when they looked through defendant David Leon Riley’s smartphone. Prosecutors used video and photographs found on the smartphone to persuade a jury to convict Riley of attempted murder and other charges. California courts rejected Riley’s efforts to throw out the evidence and uphold the convictions.

The high court ordered the California Supreme Court to take a new look at Riley’s case.

In Boston, a federal appeals court ruled that police must have a warrant before searching arrestees’ cellphones.

Police arrested Brima Wurie on suspicion of selling crack cocaine, checked the call log on his flip phone and used this information to determine where he lived. When they searched Wurie’s home and had a warrant, they found crack, marijuana, a gun and ammunition. The evidence was enough to produce a conviction and a prison term of more than 20 years.

The appeals court ruled for Wurie, but left in place a drug conviction for selling cocaine near a school that did not depend on the tainted evidence. That conviction also carried a 20-year sentence. The administration appealed the court ruling because it wanted to preserve the warrantless searches following arrest.

The justices upheld that ruling.

The cases are Riley v. California, No. 13-132, and U.S. v. Wurie, No. 13-212.

Reporter Jenny Hottle and The Associated Press contributed to this article.