WASHINGTON, January 19, 2014 – The Supreme Court has agreed to hear appeals from two cases involving cell phone searches. Police arrested criminal suspects and searched their cell phones; in both instances they did not have search warrants and in both instances information obtained led to convictions.
American courts have split on whether these warrantless searches violate the protections of the Fourth Amendment, which prohibits unreasonable searches. Historically, warrantless searches of “things” on the person arrested, or within close proximity to the person arrested at the time of the arrest have been upheld as permissible, because there is legitimate concern about the safety of the police and the possibility of the destruction of potential evidence.
Clearly, cell telephones are not weapons and present no danger to police. Accordingly, the only rationale for a police officer searching is to prevent the destruction of possible evidence.
The second case to be heard involves a warrantless search of a Massachusetts drug dealer’s two cell phones. The log of calls on one led to the location of the dealer’s home, where police found drugs and a firearm, and the second phone included photos and videos that helped lead to the dealer’s conviction.
The court did not consolidate these cases, so individual briefs and arguments will be made. The expected result is a uniform statement dealing with the core issue separating privacy and police prerogative as regards the content on your cell phone.
The specific issue involving telephones has been debated, interpreted, affirmed, overturned, modified, wiggled about and massaged at least since 1967, when the Supremes decided Katz v. United States, involving a warrantless tap of a telephone booth. Mr. Katz conducted illegal gambling activity across state lines, in violation of federal law. FBI agents overheard calls that he made from an electronic listening device they attached to the outside of the booth, and the information was used at Katz’ trial to convict him.
Upon appeal, the Supreme Court ruled that the Government’s eavesdropping violated Katz’ privacy and constituted a “search and seizure” within the meaning of the Fourth Amendment. The Court said that extends to the recording of oral statements.
The Katz case is an important one, as precedent, for today’s court in the two cases it has agreed to hear.
By first glance analysis of the facts in the Katz case, the police seemingly did everything “right.” They relied on prior established law, they had excellent probable cause, they appropriately limited their activity to the least intrusive means to accomplish their goal, and they did no more than they might have properly done if they had first obtained a warrant.
The Supremes in Katz “drew a bottom line.” The operative issue was that the Fourth Amendment requires the scrutiny of a judicial officer: a magistrate or other who would independently determine if a warrant should be issued.
Follow the Katz court’s discussion (cases and cites omitted): Searches conducted without warrants have been held unlawful notwithstanding facts unquestionably showing probable cause, for the Constitution requires that the deliberate, impartial judgment of a judicial officer be interposed between the citizen and the police … Over and over again, this Court has emphasized that the mandate of the Fourth Amendment requires adherence to judicial processes, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.
The law, as noted above, has wiggled sufficiently around to give at least surface support for the government’s position that searching cell phones without a warrant is acceptable. In 1973 the Supremes decided Robinson v. United States, and in 1974 United States v. Edwards. These cases combine to stand for the proposition that an arresting officer may seize and search any items found on an arrestee’s person, including closed containers.
Recall however: the only viable basis to search in these cases is to preserve evidence.
The government’s argument for the search of the cell phones is that technology is so advanced that evidence can be erased. The government argues in its briefs that defendants or their confederates have the ability to “remotely wipe” the contents of a cell phone or to overwrite its call log before police search it.
The argument fails, at least according to the First Circuit Appellate Court in the drug dealer case: “it is not particularly difficult for police to prevent those tactics by turning the phone off, removing it’s battery, placing it in a “Faraday enclosure” (an aluminum container that blocks the cell phone from receiving wireless signals), or blindly copying its contents. The Appellate Court stated: “the government’s concern that evidence on a cell phone could quickly be destroyed was merely theoretical and thus insufficient to satisfy the Fourth Amendment when weighed against the significant privacy implications inherent in cell phone data searches.”
This conservative, pro-government Supreme Court is likely to side with the police in these cases and legalize searches of the cell phones of anyone arrested. It was this Court this past summer that approved the police swabbing Alonzo King’s cheeks for DNA after he was arrested and brought into the station. King was ultimately convicted of a rape many years before as his DNA tied him to that crime.
The five justices in the majority ruled that DNA sampling, after an arrest “for a serious offense” and when officers “bring the suspect to the station to be detained in custody,” does not violate the Fourth Amendment’s prohibition of unreasonable searches.
Be careful about what you do with your cell phone. Besides the NSA, the police will soon be able to see it all.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is available to speak to your group on numerous legal topics.
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