THE GOVERNMENT WANTS TO LOOK THROUGH YOUR CELL PHONE.
On April 29, 2014, the United States Supreme Court will hear arguments
in what I believe to be one of the most important Fourth Amendment issues
heard by the Court in years. Two cases,
United States v. Wurie and
Riley v. California, involve searches by police of cell phones in the possession of arrested
citizens. The decision of the Supreme Court in these cases will have a
profound impact on the privacy rights of U.S. and Texas citizens.
That means you.
THE SUPREME COURT’S RULINGS IN THESE CASES WILL EITHER REINFORCE
PRIVACY RIGHTS IN A FREE SOCIETY, OR DAMN NEAR ELIMINATE THEM.
The search of cell phones by police has become one of the most common police
investigative tactics in recent years. Imagine a circumstance in which
a citizen is stopped by police and arrested for a minor offense such as
failing to signal a turn, jay-walking, or a seat belt violation. A police
officer then removes a smart phone from the pocket of an arrestee, powers
it up, and then proceeds to pore through text messages, photographs, Facebook
posts, phone calls received and sent, voicemail messages, financial records,
and other personal information, all without a search warrant. It does
not take much more imagination to appreciate that such a police tactic
can be rife with abuse. Except, you don’t actually have to imagine
this scenario. It happens every day in every jurisdiction in Texas and
the United States.
The law in the United States and Texas for decades has been that police
can search a person when he or she is arrested. The purpose of allowing
such a search is two-fold: 1) to protect the officer or officers from
potential harm if the arrested person is concealing a weapon, and 2) to
prevent the destruction of evidence. This includes any containers on the
person when arrested.
The question before the Supreme Court is whether a smart phone, capable
of storing untold amounts of personal information, should be considered
a container and subject to search without any probable cause and without
a search warrant. The Government’s –
your government’s – position before the Supreme Court in the
Wurie and Riley cases is that cell phones and smartphones are no different than other containers
such as wallets, address books, personal documents, and other items one
might carry around on his or her person. Translated, that means the government
wants police to be able to search through the phones of a citizen any
time a citizen is arrested for any offense, including such minor offenses
as jay-walking, failing to signal, and seat belt violations.
The real world application of this is staggering. When police don’t
have enough evidence to obtain a search warrant or an arrest warrant,
they can just follow a citizen around until they observe a traffic offense,
stop and arrest the citizen for the traffic offense (except speeding and
open container violations in Texas; everything else is fair game), seize
the citizen’s cell phone from his or her pocket, and then search
through it looking for any evidence of any crime. This happens every day in Texas.
The first case to be considered by the Supreme Court is
United States v. Wurie. In
Wurie, police searched, without warrant, the call logs on a flip phone and used
evidence they obtained to charge Wurie with weapon and drug charges. The
federal appellate court in Boston upheld the suppression of the evidence
from the flip phone ruling that police should have first obtained a search
warrant as required by the Fourth Amendment.
The second case is
Riley v. California. In Riley, a citizen was pulled over for an expired registration sticker.
Police found loaded guns in Riley’s car and searched through his
smart phone finding photographs that indicated that Riley was a gang member.
A further search of his phone turned up more evidence that he was involved
in a shooting. He was prosecuted for attempted murder, convicted, and
sentenced to 15 years to life in prison. No search warrant was obtained
in this case, either.
The Supreme Court will have to balance the privacy interests of citizens
and the Constitution’s prohibition against “unreasonable searches
and seizures” against the government’s need to secure this
information without a warrant. And, getting a search warrant is easy.
The government claims that cell phones can be remotely wiped and that
potentially significant evidence can be lost. Attorneys advocating that
search warrants should be sought by police point to a number of methods
to easily prevent this from occurring (by switching the phones into “airport
mode” or wrapping the phones in special, and not very expensive,
insulated bags that would prevent remote access to the phones).
This one is an easy call for me and I pray that the Supreme Court does
the right thing in these cases, that is to require search warrants before
police can rummage through a citizen’s smart phone unless there
is some already-recognized exception to the warrant requirement such as
exigency (“in the time it takes us to get a warrant, the evidence
will be lost to us”). In essence, the government seeks a “bright
line” rule that, because cell phones can be remotely wiped in some
circumstances, and containers on a person when arrested have always been
subject to search incident to arrest, a warrant should never be required.
But, modern-day smartphones are just different and our case law has simply
not caught up to such technology. We’re not talking about looking
at clothes in which a person is arrested, going through pockets for containers
containing dope, or searching a person for weapons. In the case of smart
phones, we are talking about the government accessing information touching
every personal aspect of our lives without having to make
any showing that it is necessary to a legitimate government interest.
The Texas Court of Criminal Appeals made the right call in a recent 8-1
State of Texas v. Anthony Granville, an appeal I, along with my colleague Paxton Adams, handled before the
Court of Criminal Appeals. In Granville, a 17-year-old high school student
foolishly took a photo of another student in a school restroom when the
other student was at the urinal (the photo showed just the other student’s
back). A school officer heard about the photo and, learning that Granville
had been arrested and was in jail on an unrelated fine-only misdemeanor
offense, took his cell phone from his inventoried jail property, powered
it up, searched through it until he found the photo, and then charged
Granville with a felony offense. The trial court granted a suppression
motion, which the State of Texas appealed. The State lost at the intermediate
appellate court and then appealed to Texas’s highest criminal court,
the Texas Court of Criminal Appeals. The Court of Criminal Appeals upheld
the suppression and ruled that a cell phone is not like other containers
and certainly is different in almost every respect to the usual items
found in an inmate’s jail property, clothes, in which case law recognizes
a “diminished expectation of privacy” such that a warrant
is not required.
The (awesome, if I do say so myself) ruling in
Granville is somewhat more limited than what the Supreme Court is being asked to
consider in Riley and Wurie. In
Granville, the issue was the expectation of privacy of an inmate in his or her personal
effects stored in a jail property room until it is returned to the inmate
upon release. The Supreme Court is considering the broader issue of whether
police can search, without a warrant, a cell phone found on a person when
that person is arrested. The ultimate issue, however, is the same: are
cell phones, with their incredible capacity to store enormous amounts
of personal information, different to the extent that a search warrant
should be required?
This is a “no-brainer.” The police already have the right to
hold evidence for a reasonable period of time to obtain a warrant, and
getting a search warrant is easy. There are simple ways to prevent the
destruction of evidence on a cell phone if an officer believes that the
phone contains evidence of a crime while obtaining a search warrant. There
seems no rational basis for the government to be able, in every arrest,
to rummage through a citizen’s smart phone without any constitutional
safeguards. Is it really too much to ask of our government to demonstrate
some showing of a legitimate need to invade the privacy of citizens before
it starts looking through our smart phones?
To me, it just doesn't seem very American.
Here’s hoping that our Supreme Court has enough respect for the privacy
interests of the people they serve and the Constitutional prohibitions
against unreasonable searches and seizures that they will see it the same
way. The rulings from the Supreme Court on these cases will have a very
real effect on the privacy rights of American citizens.
The opinion from the Supreme Court will likely take months. I’ll
be watching for the opinion and so should you.