- The Washington Times - Thursday, May 1, 2014

ANALYSIS:

The Supreme Court heard arguments this week in two cases on whether it is a constitutional for police to search someone’s cell phone without a warrant once they are placed under arrest.

The justices’ decision, which is expected sometime this summer, could become a critical moment in how the Court balances police powers and individual privacy in an age where technology is rapidly advancing and the government expanding its surveillance powers.

In Riley vs. California, police stopped David Leon Riley for expired registration tags, found guns and gang paraphernalia in his car, and ultimately discovered video evidence on his cell phone that helped lead to convictions for attempted murder and other charges. As a result, Riley is now serving a 15-year prison sentence.

In U.S. vs. Wurie, police arrested a Boston man, Brima Wurie for buying crack cocaine, and subsequently answered repeated calls coming from his cell phone that were traced back to the his house where officers found illegal ammunition, guns and drugs. Wurie is now serving a 20-year prison sentence.

An appellate court affirmed Riley’s conviction, but Wurie’s conviction was overturned.

In the Riley case, Judge Norman Stahl of the 5th U.S. Circuit Court of Appeals wrote that, “The Court, more than thirty-five years ago, could not have envisioned a world in which the vast majority of arrestees would be carrying on their person, an item containing not physical evidence, but a vast store of intangible data.”

Judge Stahl opined that absent a threat to officer safety or the destruction of evanescent evidence, phone searches could become “a convenient way for the police to obtain information related to a defendant’s crime of arrest—or other, as yet undiscovered crimes—without having to secure a warrant.”

Justice Department lawyers representing the Obama administration argued in its filings that, “It is now common for drug deals to be arranged by cell phones, for violent street gangs to communicate through cell phone text messages, and for child abuse to be recorded on camera phones. In today’s world, cell phones are particularly likely to contain evidence of unlawful activity and to help law-enforcement officers identify suspects they have apprehended.”

But critics of warrantless cell phone searches, which include the ACLU and Electronic Frontier Foundation, say the searches grant the government almost infinite power to uncover people’s political affiliation, religious beliefs, private medical information and personal contacts.

As a result, the opportunity to search one’s cell phone could result in encouraging what are known as “pretext arrests” — arrests on trivial charges being used as a means for police to effectively conduct warrantless surveillance whenever or upon whomever they choose.

According to the Pew Research Center, 90 percent of Americans own a cell phone and more than 12 million people were arrested in 2012 according to FBI statistics.

“There’s a much larger privacy intrusion when you are searching into the contents of a cell phone or iPad or laptop computer than the court likely envisioned in the earlier doctrines of cases like Chimel and Robinson — arguments based on officer safety and looking for evidence related to the crime at hand,” said Eve Primus, a University of Michigan law professor and former criminal investigator for the Washington, D.C. Public Defender’s Service.

“People are carrying devices that have lots of data about their personal lives when they’re walking the streets. It would really open the doors to suspicion-less searching. All searches have to have some reasonable scope and limitations—the question now is where those lines are.”

The Supreme Court has arguably leaned toward individual rights in the matter of searches.

For instance, in 1981, the Court ruled in New York v. Belton that when officers make a lawful arrest of the occupant of a vehicle, they may search the passenger compartment of the car. The Belton case mirrored the bright line rule in the 1969 cases, Chimel v. California, which established that officers can search any area only within a suspect’s immediate control.

But in 2009, the Court raised the threshold requirements for police in Arizona v. Gant, ruling that officers must demonstrate an actual and continuing threat to their safety posed by the arrestee or need to preserve evidence related to the crime to justify a warrantless search of the car.

“The cell phone cases are more about the scope of a lawful search for lawful arrest,” explained Mr. Primus.

Some criminal defense lawyers believe cell phone searches could have wider repercussions.

Guy Fronstin, a prominent South Florida criminal defense lawyer, said that “a ruling permitting officers to search cell phones … is a slippery slope that will lead to officers going on fishing expeditions searching cell phones for evidence of a crime.”

Mark Schamel, a veteran criminal defense lawyer in the District of Columbia, said he has clients that have already encountered warrantless cell phone searches.

“Police pressure them to unlock their cell phones and I tell them not to do it,” he said. “The police then turn around and threaten to seize the phone and get a warrant. They no doubt know that no judge would sign that warrant. You have to ask yourself, does the Constitution matter or are we just going to accept Soviet-era unlimited police searches?

“If so, it may actually encourage police to arrest anyone they want to search. There are so many arrestable offenses so it’s not hard to find a pretext to arrest. Should a de minimis crime lead to police searching your most intimate information? Should an open beer lead to a search of your email? Of course not.”

Mr. Schamel also said the abuses could cause security-breach issues and violate attorney-client privilege.

“When you’re not just searching someone’s cell phone, you’re searching a server, and if the arrestee is a lawyer that means the police are searching a law firm’s server. Think about the power that gives the government.”

• Jeffrey Scott Shapiro is a legal analyst for The Washington Times.

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