(Source: AP)
Unanimous decision guarantees due process in most cases, gives cell phones a special status among personal items

You can't say the Supreme Court of the United States doesn't have an open mind.

It recently ruled that stops and search warrants based on anonymous tips are legal (seemingly opening the door to indefinite police harassment).  It ruled that police can swab detained individuals cheeks for comparison in DNA databases of criminal suspects without warrant.  It even ruled that police can strip search you without a warrant or even reasonable suspicion.

But while cops can indeed take away your dignity, no matter what they take from you, they can't take away your smartphone (without warrant).  That's the take home message from today's merged SCOTUS ruling [PDF] in a pair of cases (Riley v. California, United States v. Wurie) involving police warrantless searches of smartphones.

I.  Warrantless Cell Phone Led to Prison Time

The SCOTUS heard two cases in which warrantless cell phone searches played a crucial role in investigating and doling out long prison sentences to Americans.  These people were -- until today -- part of America's prison population, which remains the largest officially declared per capita prison population in the world.

Both cases involved weapons charges.  In a Californian case, a suspect was stopped for a routine traffic violation -- expired tags.  The arresting officer discovered the suspect -- David Riley -- was driving with a suspended license.  Then the officer saw Mr. Riley's smartphone.

Seizing the device, he managed to unlock it and began to examine the suspect's pictures and videos (without warrant).  He noticed the suspect making signs indicating membership in the "Bloods" street gang.  And he noticed the suspect posing for a selfie in front of a car that resembled one involved in a recent shooting.

Based on the evidence on the suspect's phone, Mr. Riley was kept in prison and interrogated.  During the search of the vehicle a pair of loaded handguns were found concealed under the hood of the car.  He was subsequently charged with attempted murder in connection to the shooting, based mostly on the circumstantial evidence found on his smartphone.  And because of the apparent gang ties -- also "proven" by the evidence seized without warrant from his phone -- when he was found guilty, he received an "enhanced" sentence of 15 years to life in prison under federal anti-gang laws.

The case was tried in state court, so the appeal went to the The California Court of Appeal which denied the appeal and refused to suppress the smartphone evidence, upholding the conviction.  The Californian Supreme Court declined to hear the case so Mr. Riley's only hope at seeing freedom lay in the SCOTUS.

In Boston, Mass., another suspect -- Brima Wurie -- was observed by police officers who believed he was selling narcotics.  They detained him, but found no drugs.  Seizing his flip phone and searching it without warrant, they noticed a number -- "My House" -- was calling it.  The number had a picture of a woman and a child (presumably his wife and kid).

They looked up the phone number in an online listing, then travelled to Mr. Wurie's house.  Receiving a warrant, they conducted a search of the house, discovering "215 grams of crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash," according to court documents.

Mr. Wurie was sentenced to 21+ years (262 months) in prison under Massachusett's zero-tolerance laws.  The trial and sentencing were held in the U.S. Court for the District of Mass, so the appeal went to the 1st Circuit Court of Appeals, which sets precedent for Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.  The 1st Circuit overturned the convinction in a divided 2-to-1 ruling, concluding that phones -- in this case a flip phone -- were "special" and entitled to superior privacy protections during searches than everyday physical objects. 

II. Don't Tread on My Smartphone

Now, thanks to the SCOTUS ruling, both men are free and our smartphones are a bit safer from warrantless searches.

The decision was unanimous -- a relative rarity in the often divided court.

Supreme Court
The Supreme Court was unanimous in its decision to give cell phones of all kinds special privacy protections.
[Image Source: Art Lien]

The only disagreement came from Justice Samuel A. Alito, Jr. who sought to narrow the scope of the ruling.  After his motion was denied, though, he begrudingly signed off on the majority decision, making it unanimous.

Chief Justice John G. Roberts, Jr. summarized why smartphones and cellphones are entitled to special protections, stating that they are so coveted and used by modern man that "the proverbial visitor from Mars might conclude they were an important feature of human anatomy."

The decision is notable in that it gives the smartphone superior protections to non-digital caches -- such as the suspect's car, their purse, their wallet, etc.  A 1914 SCOTUS ruling established the precedent that objects "incident to the arrest" could be searched.  But the smartphone is special, the court concluded, and deserves special protections as it's essentially a walking treasure trove of personal information, in the court's analysis -- the likes of which were rare in the pre-digital age.

Writing the majority's opinion (which was accompanied by a short opinion from Justice Alito agreeing on the outcome, but disagreeing on the scope) Chief Justice Roberts comments:

Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day.  Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception.  According to one poll, nearly three-quarters of smartphone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. See Harris Interactive, 2013 Mobile Consumer Habits Study (June 2013).

A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as adiary. See, e.g., United States v. Frankenberry, 387 F. 2d 337 (CA2 1967) (per curiam). But those discoveries were likely to be few and far between. Today, by contrast, it isno exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. See Ontario v. Quon, 560 U. S. 746, 760 (2010).

Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.  

The court ruling was surprisingly resounding, deciding that virtually every argument raised by law enforcement to justify their warrantless tactics was illegal under the Fourth Amendment of the U.S. Constitution.

III. Writs of Assistance -- Echoes of British Tyranny Still Felt Today

The court cited the British concept of "writs of assistance" -- orders that authorized British soldiers to conduct unlimited warrantless searches of colonists without probable cause.  They note the speech by James Otis in Boston in 1761, who lambasted the practice in a five-hour address.  The homage to Mr. Otis is not surprising.  John Adams would later claim:

Otis was a flame of fire; with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities.

In the famous 1761 speech, Mr. Otis is quoted as remarking:

A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.
An act against the Constitution is void; an act against natural equity is void. Taxation without representation is tyranny.

The closing remark is one of the most iconic quotes of the revolution.

In mentioning the "an act against the Constitution," Mr. Otis is obviously not referring to the U.S. Constitution, nor the eventual state constitution of his home state.  Rather, he's referring to the general form for the collection of British civil liberties and property laws that were known at the time under that term.

These laws were first put in place by the "Instrument of Government" in 1657 under the moderate Rump Parliament whose moderate perspective (to not execute Charles I, the monarch of the time, but to enact a parliamentary republic) won out over more extremist notions following the Second English Civil War.  

These protections in theory applied to colonists.  The notable irony here is that the British revoked these civil liberties protections to combat colonial insurrection and "terrorist acts." Almost identical arguments were used to justify general warrants at the time.  And today, the U.S. executive and legislative branches have used identical arguments to deprive the masses of their civil liberties to "protect them" against potential "terrorist plots."

In fact, the mobile phone ruling itself bows to this hypocrisy a bit, concluding:

Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of aparticular phone. “One well-recognized exception applieswhen "the exigencies of the situation" make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’” Kentucky v. King, 563 U. S., at ___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U. S. 385, 394 (1978)). Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. 563 U. S., at ___.

In Chadwick, for example, the Court held that the exception for searches incident to arrest did notjustify a search of the trunk at issue, but noted that "if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the stationhouse without opening the luggage." 433 U. S., at 15, n. 9.

In light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone. The defendants here recognize—indeed, they stress—that suchfact-specific threats may justify a warrantless search of cell phone data. See Reply Brief in No. 13–132, at 8–9; Brief for Respondent in No. 13–212, at 30, 41. The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case. See McNeely, supra, at ___ (slip op., at 6).

That ruling is not as explicit as the rest of the opinion -- and perhaps purposefully so.  While it does leave the door open to warrantless phone searches in the name of "fighting terrorism," it leaves it up to future state, district, and circuit courts to debate about the legality of "exigent" (basically, emergency) warrantless searches of phones.  It does raise the bar a bit higher in such cases by saying the warrantless search must be approved of after the fact by a judge.

In its hypothetical and noncomittal language ("other case-specific exemptions may justify"), the court also leaves leeway for the issue to be heard by future sessions of the SCOTUS, perhaps strengthening the protections and further reducing the inconsistencies -- history wise.

IV. ACLU Cheers, Obama Administration Silently Weeps

The Chief Justice is relatively unequivocal that stronger protections are necessary, given the fact that cell phones play an unprecedented and sensitive role in the lives of most Americans.  He remarks:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans "the privacies of life," Boyd, supra, at 630. 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 for which the 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.

Addressing the chief criticism that the plaintiffs (state and federal prosecutors) and some of our readers might have -- that banning warrantless searches could allow guilty men to go free and raise crime, he asserts:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.
Smartphone and the Constitution
The court acknowledged that defending the Constitution -- and our smartphones -- comes at a cost, but implies that the cost of the alternative (tyranny) is far higher. [Image Source: Cole Hayes]

The quote is powerful and brings to mind the words of English philosopher and jurist William Blackstone, whose writings had a pivotal influence on the Framers and thus the modern American legal system.  Remarking on such possibilities, he commented:

It is better that ten guilty persons escape than that one innocent suffer.

Steven Shapiro, national legal director of the American Civil Liberties Union (ACLU), cheered the outcome in the phones case, remarking:

By recognizing that the digital revolution has transformed our expectations of privacy, today's decision is itself revolutionary and will help to protect the privacy rights of all Americans.

Not so happy was the Obama administration's U.S. Department of Justice (DOJ).  The executive branch agency's spokeswoman Ellen Canale hinted that the law enforcement may look to ways to sneak around the SCOTUS ruling, stating:

[We will continue to] make use of whatever technology is available to preserve evidence on cellphones while seeking a warrant.... Our commitment to vigorously enforcing the criminal laws and protecting the public while respecting the privacy interests protected by the Fourth Amendment is unwavering.

But much like in the important pro-privacy GPS ruling of 2012 which banned warrantless tracking of a suspect's car, this cell phone ruling will be a thorny and difficult one for those looking to avoid due process to get around.  For today, the smartphone is a little bit safer.  But for tomorrow, the cost of safety, privacy, and freedom is to remain enternally vigilant against the omnipresent forces forces of tyranny.

Sources: SCOTUS [opinion -- PDF], SCOTUS Blog, ACLU [press release], DOJ quote (via USA Today)

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