Police and Cell Phones: Defining Unreasonable Search and Seizure

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 A customer tries out the Apple iPhone 5 inside the Apple Fifth Avenue flagship store on the first morning it went on sale on September 21, 2012 in New York City.
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Today, the Supreme Court will hear two back-to-back cases that could have serious consequences for the way we think about privacy and communication in modern life.

The Court will consider a new question surrounding search and seizure as it relates to that most modern and most ubiquitous of devices: The smartphone. At issue is whether police need a warrant before searching the mobile device of a person under arrest.

As it stands now, the Fourth Amendment outlaws unreasonable search and seizure, and the Supreme Court has examined that Constitutional principle in relation to phone conversations and snail mail, in school lockers and home property. But the birth of new technologies is raising a whole new set of legal questions.

The first case before the Court is Riley v. California, which began in 2009 when San Diego police officers arrested David L. Riley for driving without registration. The officers found loaded weapons in Riley's car and gang-related messages on Riley's smartphone. The other case, United States v. Wurie, began in 2007, when Boston police officers used call logs from an arrested woman's flip phone as evidence of her guilt in drug and gun-related crimes.

These cases have found their way to the Supreme Court in part because police officers believe that smartphones are a vital source of evidence. Charles Ramsey, Philadelphia Police Commissioner, explains why he believes the government has a "compelling interest" in searching the smartphones of arrested persons.

"It is technology that we have to deal with on a regular basis in today's world," says Commissioner Ramsey. "I realize that there is personal information in smartphones, but when we do make an arrest it is very, very important that we're able to have access to information that would lead us to a criminal conviction in a particular case."

Commissioner Ramsey, who is also the president of the Major Cities Chiefs of Police Association, an organization that filed a friend of the court brief supporting warrantless smartphone searches, says collecting data and information from these types of mobile devices is critically important for law enforcement in this day-and-age.

"If it's a regular cell phone without smartphone technology, that's different because those phones don't have the ability to erase automatically or remotely like you do with a smartphone," he says. "But more and more people are moving away from regular cell phones. In fact, it's probably not even that easy to buy a regular cell phone anymore—just about everything is a smartphone. As this technology continues to advance, it's going to become more and more difficult for us to be able to preserve evidence of a crime."

According to Commissioner Ramsey, a warrantless smartphone search ensures that evidence can be collected in a timely manner before a suspect has a chance to destroy it—something that he says was done in Orange County, California. 

"The sheriff's office there conducted a raid of a narcotics organization and a money laundering organizations," he says. "Others got wind of the fact that the arrests were going down and remotely erased all information from cell phones of every member of that organization. In fact, that particular drug organization had its own IT department that was capable of doing just that. Obviously, there was an awful lot of evidence lost as a result of that."

Commissioner Ramsey says this case in Orange County provides an example as to why the Supreme Court should allow law enforcement officials to search the smartphones of those under arrest without a warrant.

"Waiting to get a warrant is not always piratical," he says. "We're hopeful that the Court will take today's technology into consideration when making their decision."

While there are current laws against evidence tampering and obstruction of justice, Commissioner Ramsey says prosecuting someone under the existing statute for deleting cell phone data, photos, videos, contacts or other information that may be considered evidence in a criminal proceeding would be extremely challenging.

"It would be a very difficult thing to prove if you don't have evidence that the reason why they erased the information was to avoid criminal prosecution," he says.

Law enforcement officials already have the authority to search an individual's pockets and property on or near their person upon arrest, something that dates back to the common law era and is frequently referred to as the search-incident-to-arrest doctrine. Commissioner Ramsey and others in favor of warrantless smartphone searches argue that the practice would fall under the aforementioned doctrine.

"It's going to be a difficult case for the Supreme Court to sort through," he says. "Hopefully they listen to all the arguments and understand that at the time the Constitution was written, and the Fourth Amendment of unlawful searches and seizures, our founding fathers did not have to deal with the technology we deal with today."

Sophisticated technology is what makes the need for warrantless smartphone searches compelling, Commissioner Ramsey argues. He says that a mobile application is currently being developed that automatically configures an individual's GPS location and erases all data from a device if the location signal determines a person is in a police station.

"Technology is advancing so fast that it's difficult to keep pace, and it's going to create some serious problems for us in the future," he adds. "The technology itself has created the exigent circumstances that we're talking about here, and it's advancing every single day."

Technology Vs. Law

So will a warrantless smartphone search become a lawful practice? Providing the legal perspective for how the judges might rule is Stephen Cribari, a professor of law at the University of Minnesota.

"This is a very tangled legal mess," says Cribari. "I don't think there's a technological fix because technology advances so fast that once you fix it, it's going to change and you're going to have to fix again."

Professor Cribari says that the issue at the heart of this case is a question of privacy—do individuals have a expectation of privacy when it comes to the data on their smartphones that extends beyond the search-incident-to-arrest doctrine?

The professor says that Justice Sonia Sotomayor has already raised this question in the case U.S. v. Jones, which concluded that tracking a suspect's car by attaching a GPS device to it amounts to a search under the Fourth Amendment. In that case, Justice Sotomayor wondered whether an individual can have a reasonable expectation of privacy for information that has been knowingly exposed to the public.

"When you use [a smartphone] it's a data stream that goes into space and comes back," says Cribari. "We have to talk about in terms of analogies because very few people have the savvy to talk about it technologically. It's not like a letter—you're not sealing something up and putting a stamp on it, it's like a postcard because all of the data goes out, goes around, gets copied, reassembled and goes back. And yet, you want privacy in it."

Professor Cribari says that a similar issue was raised in the 1989 case United States Department of Justice v. Reporters Committee for Freedom of the Press. During the case, which took place during the very early days of the digital age, Justice Stevens described an interesting conundrum that has since been dubbed "practical obscurity." While some information may be technically public, if it is held in a variety of different locations and requires a great deal of effort to locate, the information is practically obscure and simultaneously public and sensitive.

Professor Cribari says he does not believe the Court will recognize piratical obscurity in this case.

"My students every year believe that because their data is personal and many instances intimate, it is therefore private," he says. "I don't think we can say the Supreme Court has ever protected the content of information—it protects where you say it and how you speak it."