I enjoy watching the
Supremes. Realizing people might think I am talking about the singing ensemble
(that I do like), I feel I should clarify that I am talking about the Supreme
Court of the United States. It is a unique group and frankly, despite all the
pundits who predict their actions, I still tend to believe that you never
really know just what they might do.
Last week they surprised me,
pleasantly I might add, when they issued a joint ruling on Riley v California and UnitedStates v Wurie. These cases deal with the search of cell phones. Chief
Justice Roberts wrote the opinion for this ruling, with Associate Justice Alito
writing a concurring opinion.
The Court ruled, in a unanimous
vote, for the people and privacy, saying that barring exigent circumstances –
which must be evaluated on a case-by-case basis by the judge hearing the case –
information contained on a mobile phone cannot be viewed without a search
warrant. Roberts' opinion states, "Our cases have historically recognized that
the warrant requirement is 'an important working part of our machinery of
government,' not merely an inconvenience to be somehow 'weighed' against the
claims of police efficiency."
The Court, in coming to this
decision looked at three prior cases, all related to the application of Fourth
Amendment guarantees against unreasonable search and seizure, privacy issues,
and remedies suggested by the United States and the state of California. As
these factors were deliberated and weighed the Court demonstrated its insight,
recognizing the cell phone as a unique device, unlike anything available or
conceived of when the available legal precedents or amendments were crafted.
What I find interesting, and surprising,
is that all the Supremes came down on the side of protecting privacy, despite
saying, "Privacy comes with a cost." In the Court's opinion it
clarifies that the cell phone presents privacy concerns that exceed those
related to looking in a wallet or purse. It points out that the shorthand
"cell phone" is a misnomer, saying the devices could reasonably be
called calendars, libraries, or minicomputers with phone capability. The
storage capacity and ability to access content and information stored
elsewhere, means the information available in the search of a cell phone far
exceeds the privacy intrusion of the physical search allowed at the time of
arrest.
The opinion states: "Indeed,
a cell phone search would typically expose to the government far more than the
most exhaustive search of a house … Treating the cell phone as a container
whose contents may be searched incident to an arrest is a bit strained as an
initial matter. But the analogy crumbles entirely when a cell phone is used to
access data located elsewhere, at the tap of a screen."
It is interesting to note
that, although not mentioned outright, the Court seriously considered Fifth
Amendment protections against self-incrimination. In disallowing the Gant standard –"which permits searches
of a car … where it is reasonable to believe that evidence of the crime of
arrest might be found in the vehicle" – the Court recognizes that a
preponderance of the data on the cell phone speaks for the owner in ways the
laws says an individual cannot be compelled.
The Court states, "In the cell
phone context, however, it is reasonable to expect that incriminating
information will be found on a phone regardless of when the crime occurred.
Similarly in the vehicle context Gant
restricts broad searches resulting from minor crimes such as traffic violations.
That would not necessarily be true for cell phones. … Even an individual pulled
over for something as basic as speeding might well have locational data
dispositive of guilt on his phone. An individual pulled over for reckless
driving might have evidence on the phone that shows whether he was texting
while driving.'" As this points out, information passively collected and
stored by the cell phone could create a clear map of activity that could act as
testimony against self.
By the way, the Court inadvertently
settled the question of whether or not an officer can confiscate and search
your cell phone during a traffic stop or at the scene of an accident. He or she
cannot confiscate without arresting you first and cannot search without a
warrant.
In hearing these cases, the
Court's opinion could have resulted in giving law enforcement a pass to
accessing our entire lives. Instead they shut down the loophole with a
definitive statement, "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."
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