Val Van Brocklin.
What’s reasonable and unreasonable when it comes to cell phone searches and privacy is often the sticky wicket cops find themselves in — enter the Supreme Court.
Last month, the United States Supreme Court accepted two cases — one a state case and one a federal case — each of which address the authority of the police to search cell phones and came to opposite conclusions.
The cases span significant advances in technology. In U.S. v. Wurie, the simple “flip phone” would now be considered old-fashioned.
The case of Riley v. California, involved a “smart phone” that can function as a hand-held computer and contains much more personal information. How this might factor into the Court’s decisions remains to be seen.
In 2012, the 7th Circuit in U.S. v. Flores-Lopez, addressed whether its decision should rest on how smart or dumb the actual phone is, as that might relate to how much information is stored and the owner’s expectation of privacy in that information.
The Supreme Court is scheduled to hear both Riley and Wurie in April. On average, it takes 14 to 16 weeks for a decision after arguments, although up to 30 weeks is not unusual.
However the Supreme Court rules, its decision(s) will have enormous practical consequences for police and citizens since 90 percent of Americans own cell phones.
The State Case
Riley was stopped for expired tags. When police discovered loaded guns in his vehicle, they arrested Riley and searched his smart phone without a warrant. They found evidence identifying Riley as a gang member intent on killing some rival gang members. Police traced calls that pointed to Riley as a participant in a shooting at rival members.
No one positively identified Riley but the jury heard the evidence from the cell phone search and convicted Riley of shooting at an occupied vehicle, attempted murder and assault with a semi-automatic weapon. He was sentenced to fifteen years to life.
On appeal, the California Supreme Court — which had previously ruled that such searches are legal — affirmed Riley's conviction.
In granting review, the U.S. Supreme Court said it would rule only on: “Whether evidence admitted at [his] trial was obtained in a search of [his] cellphone that violated [his] Fourth Amendment rights.”
The Federal Case
Believing they had witnessed a drug transaction between Brima Wurie and Fred Wade, police confronted Wade and found two 8-balls of cocaine. Other officers arrested Wurie. At the police station Wurie’s cell phone rang. Police opened the phone and traced the call to an address in Boston. Police went to the address and knocked. When a woman opened the door they smelled marijuana. Police got a search warrant and recovered 215 grams of crack cocaine, a 9mm pistol, assorted ammunition, marijuana, and drug paraphernalia.
Wurie was indicted for felony possession of a firearm and ammunition, distribution of crack cocaine within 1,000 feet of a school and possession of crack cocaine with intent to distribute. He moved to suppress the evidence gained from his cell phone, arguing that the police had violated his Fourth Amendment rights. The trial court held that the cell phone search was incident to Wurie’s arrest and was limited and reasonable.
The First Circuit U.S. Court of Appeals reversed, holding that the search was not conducted for officer safety or to preserve destructible evidence. The Court noted that a modern cell phone is like a personal computer that can contain large amounts of highly personal information. Because searching cell phones could be a convenient way for the police to find more information relating to the suspect’s arrest or even other crimes, the Court held that police could not perform warrantless searches of cell phones unless specific exigent circumstances existed.
In accepting U.S. v. Wurie, the Supreme Court said it would address the broader issue of whether the Fourth Amendment allows police to conduct a warrantless review of the call log of the cell phone belonging to a person who has been lawfully arrested.
If the Court rules the search in Wurie was constitutional, law enforcement can only hope the Court goes on to give some guidance regarding searches that go beyond just a call log. It’s up to the Court whether to decide the issue narrowly on just the facts presented in Wurie or to issue a more sweeping decision on cell phone privacy.
My Bet
I’m guessing the Court won’t issue a sweeping decision in Wurie for two reasons:
1.) The Court won’t want to task itself with learning and understanding all the currently available cell phone technology.
2.) That technology is rapidly evolving.
2.) That technology is rapidly evolving.
I’ll also guess the Court will be looking at other cases and whether it thinks law enforcement has been over-reaching in searching cell phones or has been self-policing and limiting such searches to recognized exceptions like officer safety or the potential destruction of evidence. .
Visit Val at www.valvanbrocklin.com and contact her at info@valvanbrocklin.com.