The Government Wants to Look Through Your Cell Phone

On April 29, 2014, the United States Supreme Court will hear arguments in what I believe to be one of the most important Fourth Amendment issues heard by the Court in years. Two cases, United States v. Wurie and Riley v. California, involve searches by police of cell phones in the possession of arrested citizens. The decision of the Supreme Court in these cases will have a profound impact on the privacy rights of U.S. and Texas citizens.

That means you.

The Supreme Court’s Rulings In These Cases Will Either Reinforce Privacy Rights In A Free Society, Or Damn Near Eliminate Them.

The search of cell phones by police has become one of the most common police investigative tactics in recent years. Imagine a circumstance in which a citizen is stopped by police and arrested for a minor offense such as failing to signal a turn, jay-walking, or a seat belt violation. A police officer then removes a smart phone from the pocket of an arrestee, powers it up, and then proceeds to pore through text messages, photographs, Facebook posts, phone calls received and sent, voicemail messages, financial records, and other personal information, all without a search warrant. It does not take much more imagination to appreciate that such a police tactic can be rife with abuse. Except, you don’t actually have to imagine this scenario. It happens every day in every jurisdiction in Texas and the United States.

The law in the United States and Texas for decades has been that police can search a person when he or she is arrested. The purpose of allowing such a search is two-fold: 1) to protect the officer or officers from potential harm if the arrested person is concealing a weapon, and 2) to prevent the destruction of evidence. This includes any containers on the person when arrested.

The question before the Supreme Court is whether a smart phone, capable of storing untold amounts of personal information, should be considered a container and subject to search without any probable cause and without a search warrant. The Government’s – your government’s – position before the Supreme Court in the Wurie and Riley cases is that cell phones and smartphones are no different than other containers such as wallets, address books, personal documents, and other items one might carry around on his or her person. Translated, that means the government wants police to be able to search through the phones of a citizen any time a citizen is arrested for any offense, including such minor offenses as jay-walking, failing to signal, and seat belt violations.

The real world application of this is staggering. When police don’t have enough evidence to obtain a search warrant or an arrest warrant, they can just follow a citizen around until they observe a traffic offense, stop and arrest the citizen for the traffic offense (except speeding and open container violations in Texas; everything else is fair game), seize the citizen’s cell phone from his or her pocket, and then search through it looking for any evidence of any crime. This happens every day in Texas.

The first case to be considered by the Supreme Court is United States v. Wurie. In Wurie, police searched, without warrant, the call logs on a flip phone and used evidence they obtained to charge Wurie with weapon and drug charges. The federal appellate court in Boston upheld the suppression of the evidence from the flip phone ruling that police should have first obtained a search warrant as required by the Fourth Amendment.

The second case is Riley v. California. In Riley, a citizen was pulled over for an expired registration sticker. Police found loaded guns in Riley’s car and searched through his smart phone finding photographs that indicated that Riley was a gang member. A further search of his phone turned up more evidence that he was involved in a shooting. He was prosecuted for attempted murder, convicted, and sentenced to 15 years to life in prison. No search warrant was obtained in this case, either.

The Supreme Court will have to balance the privacy interests of citizens and the Constitution’s prohibition against “unreasonable searches and seizures” against the government’s need to secure this information without a warrant. And, getting a search warrant is easy. The government claims that cell phones can be remotely wiped and that potentially significant evidence can be lost. Attorneys advocating that search warrants should be sought by police point to a number of methods to easily prevent this from occurring (by switching the phones into “airport mode” or wrapping the phones in special, and not very expensive, insulated bags that would prevent remote access to the phones).

This one is an easy call for me and I pray that the Supreme Court does the right thing in these cases, that is to require search warrants before police can rummage through a citizen’s smart phone unless there is some already-recognized exception to the warrant requirement such as exigency (“in the time it takes us to get a warrant, the evidence will be lost to us”). In essence, the government seeks a “bright line” rule that, because cell phones can be remotely wiped in some circumstances, and containers on a person when arrested have always been subject to search incident to arrest, a warrant should never be required.

But, modern-day smartphones are just different and our case law has simply not caught up to such technology. We’re not talking about looking at clothes in which a person is arrested, going through pockets for containers containing dope, or searching a person for weapons. In the case of smart phones, we are talking about the government accessing information touching every personal aspect of our lives without having to make any showing that it is necessary to a legitimate government interest.

The Texas Court of Criminal Appeals made the right call in a recent 8-1 decision, State of Texas v. Anthony Granville, an appeal I, along with my colleague Paxton Adams, handled before the Court of Criminal Appeals. In Granville, a 17-year-old high school student foolishly took a photo of another student in a school restroom when the other student was at the urinal (the photo showed just the other student’s back). A school officer heard about the photo and, learning that Granville had been arrested and was in jail on an unrelated fine-only misdemeanor offense, took his cell phone from his inventoried jail property, powered it up, searched through it until he found the photo, and then charged Granville with a felony offense. The trial court granted a suppression motion, which the State of Texas appealed. The State lost at the intermediate appellate court and then appealed to Texas’s highest criminal court, the Texas Court of Criminal Appeals. The Court of Criminal Appeals upheld the suppression and ruled that a cell phone is not like other containers and certainly is different in almost every respect to the usual items found in an inmate’s jail property, clothes, in which case law recognizes a “diminished expectation of privacy” such that a warrant is not required.

The (awesome, if I do say so myself) ruling in Granville is somewhat more limited than what the Supreme Court is being asked to consider in Riley and Wurie. In Granville, the issue was the expectation of privacy of an inmate in his or her personal effects stored in a jail property room until it is returned to the inmate upon release. The Supreme Court is considering the broader issue of whether police can search, without a warrant, a cell phone found on a person when that person is arrested. The ultimate issue, however, is the same: are cell phones, with their incredible capacity to store enormous amounts of personal information, different to the extent that a search warrant should be required?

This is a “no-brainer.” The police already have the right to hold evidence for a reasonable period of time to obtain a warrant, and getting a search warrant is easy. There are simple ways to prevent the destruction of evidence on a cell phone if an officer believes that the phone contains evidence of a crime while obtaining a search warrant. There seems no rational basis for the government to be able, in every arrest, to rummage through a citizen’s smart phone without any constitutional safeguards. Is it really too much to ask of our government to demonstrate some showing of a legitimate need to invade the privacy of citizens before it starts looking through our smart phones?

To me, it just doesn’t seem very American.

Here’s hoping that our Supreme Court has enough respect for the privacy interests of the people they serve and the Constitutional prohibitions against unreasonable searches and seizures that they will see it the same way. The rulings from the Supreme Court on these cases will have a very real effect on the privacy rights of American citizens.

The opinion from the Supreme Court will likely take months. I’ll be watching for the opinion and so should you.