The U.S. Supreme Court on Cellphones

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Last Wednesday, June 25, in the case of Riley vs. California — and a second, similar case, U.S. vs. Wurie — the U.S. Supreme Court, in a unanimous 9-0 decision, handed down a new rule that now applies to state and local police, and federal investigators in the United States.

The rule states that the police cannot turn on a cellphone or smartphone and search its contents when they arrest someone who, for whatever reason, has a cellphone or smartphone in his or her possession.

Police at various times and in various places in the United States have done just that: searched the cellphones of people they arrest. But, the Supreme Court now says in a 28-page opinion in the Riley and Wurie cases written by Chief Justice John G. Roberts, Jr., that practice is not permissible under the U.S. Constitution.

The Fourth Amendment, the Court says, forbids the search of a cellphone merely because the phone happens to be in someone’s possession at the moment of arrest. If police believe a cellphone must be searched, the Court says, they can request a search warrant and, if it is granted, search the phone.

The first half of the Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” These are the words that are the heart of the Fourth Amendment ban on unreasonable search and seizure.

The second half of the Fourth Amendment reads: “…and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” These words set out the basic requirements for a search warrant in the United States.

It is routine, the Court notes, for physical objects to be collected by the police when someone is arrested, and to be carefully examined. This is done, the Court says, first to protect the arresting officers, and second to preserve anything that might be important evidence in the case.

But a cellphone or smartphone, the Court continues, typically contains vast amounts of information personal to the cellphone’s owner — information that presumably has no relevance to the owner’s arrest.

Therefore, the Court’s opinion says, when the owner of a cellphone is arrested, the cellphone can be taken into police possession to be examined for anything dangerous to the arresting officers — such as a razor blade — and the phone can be held to preserve its contents as evidence, in the event a warrant is eventually sought to search the phone.

In addition, the opinion says, to further protect its contents, the phone can be turned off, and its battery removed — or it can be left on to prevent automatic encryption when it is turned off — and it can be placed in an aluminum foil bag — a “Faraday bag” — to block any remote attempt to “wipe” the phone’s contents so nothing will be found even if the phone is searched later under a warrant.

Can there be cases where the phone can lawfully be seized and searched immediately by the arresting officers? Of course, the Court says. If an immediate search of the phone’s contents is “reasonable” under the circumstances, an immediate search would not be a violation of the Fourth Amendment.

The police, then, have adequate means to take possession of a cellphone when they make an arrest, and hold the phone for a later search — and with that concern disposed of, the Riley decision stands as one of the great Supreme Court rulings with its emphasis on privacy in the digital age.

“Modern cell phones,” the Court’s opinion concludes, “are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life….’

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection [against unjustified search and seizure for which the nation’s founders fought].

“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”

Question: How did the two cases before the Supreme Court come about to begin with?

In the first case, Riley vs. California, Mr. Riley was stopped by police in San Diego, California, because the car he was driving had an expired license tag. Then the officers saw he was driving with a suspended driver’s license, so they impounded his car, searching it in the process. They found two illegally concealed, loaded handguns under the hood. They arrested Mr. Riley and searched him, putting his possessions in an evidence bag.

At the police station, however, a detective started looking through Mr. Riley’s smartphone, and found references to a known street gang. They followed up on Mr. Riley’s involvement with the gang, and that led to his conviction on a variety of charges, and a 15-year-to-life sentence. The California Court of Appeal — the highest state court in California — upheld the conviction, but the U.S. Supreme Court has now reversed that decision.

In the second case, U.S. vs. Wurie, an officer observed Mr. Wurie making a drug sale from his car in Boston, Massachusetts. He was arrested and searched, but at the police station, one of his two cellphones kept “ringing,” showing calls from “my house.” The police then went to the address — which they found in a phone book — and after obtaining a search warrant, seized crack cocaine, marijuana, drug paraphernalia, an illegal firearm and ammunition, and cash.

Mr. Wurie was eventually convicted and sentenced to 262 months — (21 years, 10 months) — in prison. The U.S. Court of Appeals for the First Circuit (primarily the New England states), however, overturned Mr. Wurie’s conviction because it was based on an unconstitutional search of his cellphone. The U.S. Supreme Court’s ruling in U.S. vs.Wurie upholds the decision of the U.S. Court of Appeals.

Question: How sensitive is the Supreme Court’s ruling to the public’s use of cellphones, and digital equipment generally?

The consensus is clear: The Court’s ruling, nearly all commentators agree, is completely, and appropriately, sensitive to the public’s use of digital equipment and practices.

Ninety percent of Americans have a cellphone. Smartphones, the Court notes, have the capacity to hold thousands of items of information of all kinds, and people use that capacity to carry in their phones “everything.”

The Court’s opinion mentions one survey that found 75 percent of cell- and smartphone users have their phones within a 5-foot reach most of the day and night. Twelve percent said they keep their phones handy even when they shower.

Most commentators say that the Court’s decision, on a 9-0 unanimous vote, and its written opinion constitute a straightforward, nontechnical ruling, accessible in its meaning to the legal profession, law enforcement, and the public.

It is the first U.S. Supreme Court ruling on privacy in the digital age, and its impact is expected to extend — directly and indirectly — well beyond cellphones and smartphones to the public’s use generally of digital equipment and practices.