Cellphones

Supreme Court To Decide If the Fourth Amendment Applies to Police Searches of Smart Phones

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Cell Phone Warrant
staugustinecriminallawyers

The Fourth Amendment of the U.S. Constitution states: 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause….

So are smart phones packed with telephone numbers, addresses, photos, texts, videos, and Internet Search logs analogous of papers and effects? On Friday, the U.S. Supreme Court agreed to hear appeals from two cases—Riley v. California and U.S. v. Wurie—in which police seized and searched cell phones and used evidence found on them to convict their owners of crimes.

In California, David Leon Riley was convicted of shooting at an occupied vehicle, attempted murder, and assault based on circumstantial evidence in his phone that suggested that he was a gang member. The appeals courts in California upheld his conviction. In Massachusetts, police searched the numbers stored in Brima Wurie's phone to find his house address where they then proceeded to conduct a search that uncovered a stash of illegal drugs and gun. The appeals court in this case overturned Wurie's conviction and decided that the police must obtain a warrant before searching a cell phone.

The courts have generally ruled that police may search people whom they have arrested with the general goals of making sure that the arrestees do not have weapons that could harm the police and protecting evidence from destruction. The lawyers in the Riley case argue in their Supreme Court petition argue:

Contrary to the California Supreme Court's view, the Fourth Amendment forbids police officers from searching cell phones incident to arrest for two reasons. First, once a cell phone is securely in police control, neither of the reasons identified in Chimel v. California, 395 U.S. 752 (1969), [i.e., weapons or destructible evidence] for conducting searches incident to arrest justifies searching the phone's digital contents. Second, the profound privacy concerns attendant to cell phones make it unreasonable for police officers to search digital content without a warrant.

The Obama Administration's Department of Justice has filed a brief arguing that the police do not need a warrant to search the contents of a cell phone. The amicus brief for the Electronic Frontier Foundation and the Center for Democracy and Technology points out:

Smartphone technology has thus produced an incredible change in the quantity and type of information that individuals routinely have in their immediate possession. Previously, no individual could carry, either on his or her person or in a container, even a small fraction of the information contained in today's smartphones. In physical form—paper documents, photographs, etc. — the information would be too bulky and too heavy to carry. Because of those physical limitations, more over, no individual could routinely carry all of his or her personal financial or medical information.

Today, it is no exaggeration to state that an individual can, and often does, carry at all times the extremely personal information that formerly would have been stored in the individual's residence.

Given that we now carry our most private papers and effects on us at all times, the Supreme Court should clearly recognize that Fourth Amendment protections apply to the seizure and search of our cell phones.

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  1. Searching cellphones is actually a tax: “Justice” Roberts

    Seriously this will turn out for the worse. Who in government doesn’t want government to have more power?

  2. Supreme Court To Decide If the Fourth Amendment Applies to Police Searches of Smart Phones

    How does it not? Seriously, how is this even a question?

    1. When you go to law school, the first thing they do is beat common sense out of you.

      1. When you go to law school, the first thing they do is beat common sense out of you.

        And we have a frequent guest here who has apparently made it his mission to prove this to be true everyday…

        1. Uh oh. Somebody has a Bo in his bonnet.

    2. The constitutional scholar has 105 pages saying it doesn’t. Who are you to disagree? What are your credentials?

        1. It was. You-know-who appealed to credentials the other day. Obama’s credentials, in fact.

    3. The government, including the courts, tends to use technological advance to increase government power at the expense of human liberty. This is true in other areas, too, but nowhere near as much as with information technology. It really highlights how much the seizure of power explicitly forbidden in the Constitution occurs with the connivance of the branches. It’s one long coup.

    4. “Seriously, how is this even a question?”

      I’m no constitutional scholar, but I believe case law is built upon the idea of asking, and then answering, such questions.

      1. It’s just that the answers usually suck for liberty.

        1. That’s a pretty broad statement. Is your solution “better” courts, no courts at all, or a class of citizenry that exists only in fiction?

          1. How about a class of Supreme Court Justice that defends the Constitution as written?

            1. Better courts, then.

            2. Not that your solution has not been demanded — of every Court, by every political faction — since the very first Supreme Court.

          2. Is your solution “better” courts, no courts at all, or a class of citizenry that exists only in fiction?

            I’m partial to the idea of periodically killing all the lawyers and starting over.

            1. If you killed all the lawyers here, the volume of commentary would drop 35%.

              1. Meh…gotta break a few eggs…

                Think of how many fewer lawyers there’d be if there was a 20% probability there could be a purge within their lifetimes. Think of how much better the world would be.

                I can dream.

                1. I can dream too.
                  Can we start with John?

  3. Does the 4th amendment apply to anything anymore? I mean look at stop & frisk.

  4. Alternate title;

    Gaggle of Statist Fuckwits Soon to Issue Writ of Assistance.

  5. Just wait until states start accepting electronic proof of insurance on your smartphone.

    “hey, you voluntarily handed your smartphone to the cop doing the traffic stop. No 4A protections.”

    -The Supremes in 3-5 year from now.

    1. Isn’t there an insurance company using that as a gimic right now?

  6. As I said yesterday: Gee, let’s see. Will SCOTUS move the needle toward or away from greater police power? That’s a real head-scratcher. #PoliceState

  7. The Obama Administration’s Department of Justice has filed a brief arguing that the police do not need a warrant to search the contents of a cell phone.

    Wow, who could have seen that coming?

  8. Here’s what I don’t understand:

    Don’t all cell phones lock?

    So unless the cop sneaks up behind me and pulls it from my hand while I’ve got it unlocked and am using it (which frankly could be an issue if I’m filming them at the moment they seize the phone) I don’t see how they can search it if I don’t want them to.

    “Unlock your phone for me!”

    “Go fuck yourself.”

    I have much confusion about this. I can’t really understand giving your wife or girlfriend the password to your phone, let alone some random cop with no warrant.

    1. A lot of people don’t lock their phones. And pattern locks can often be discerned by smudges on the screen.

      I can’t really understand giving your wife or girlfriend the password to your phone, let alone some random cop with no warrant.

      Well, people who actually have drugs in the car quite often consent to searches. So… yeah.

    2. There are also gizmos that will take all the info off of your cell phone even while it is locked.

      1. Yep. The locking does nothing, you need system wide encryption. Ubuntu phone might do that, I’m not really sure.

  9. To be fair, there is a risk of evidence destruction via remote wipe.

    That said, this problem is easily and more properly solved by placing the phone in a Faraday cage.

    1. That said, this problem is easily and more properly solved by placing the phone in a Faraday cage.

      Good idea, but how are we going to equip every pigmobile with a Faraday cage? Pigs don’t even want to wear cameras or have people record their actions.

  10. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause….

    What kind of asshole thinks that a cell phone is made of paper? Or is a house or person?

    /state-sucker

  11. OT: Socially liberal Gov. Cuomo of NY says “extreme conservatives” better mosey on out of the Empire State.

    “Are [Republicans] these extreme conservative, [deleted], pro assault weapon, anti-gay? Is that who they are? Because if that’s who they are, and if they are the extreme conservatives, they have no place in the state of New York. Because that’s not who New Yorkers are. If they are moderate Republicans, like in the Senate right now, who control the Senate-moderate Republicans have a place in this state.”

    http://www.hngn.com/articles/2…..erview.htm

    1. like another poster is fond of saying – tolerance means not tolerating the intolerant and every knows those gun-loving, gay-hating, christo-fascists are intolerant, therefore the tolerant people of NY cannot tolerate them.

  12. Established policy is to allow the police to stop anyone, anywhere, for no reason, in order to inspect their identity papers and interrogate them and compel them to prove to the officer’s satisfaction that they are not committing a crime. Why would the Supreme Court bother to impede cops’ rooting around in cellphones or computers?

  13. Because if that’s who they are, and if they are the extreme conservatives, they have no place in the state of New York.

    Apparently, the governor of the state of New York believes the entire state is (or should be) exactly like Albany and Manhattan “smart set” society.

  14. This story is making noise among progs:

    “Unlikely sponsor of minimum wage increase

    Photo caption: “Ron Unz, the man behind the 1998 measure that eliminated bilingual education in California, wants to promote an initiative that would raise the minimum wage to $12 an hour in 2016.”

    Story: “The higher pay, he believes, would make minimum-wage jobs more attractive to “Americans” and thus reduce the flow of immigrants entering the country illegally to take jobs no one else wants.”

    1. It’s really amazing that the guy who didn’t believe in free association continues to not believe in free association.

      I am, frankly, shocked at this.

    2. “The higher pay, he believes, would make minimum-wage jobs more attractive to “Americans” and thus reduce the flow of immigrants entering the country illegally to take jobs no one else wants.”

      Immigrants, on the other hand, are apparently immune to the attraction of higher pay.

    3. Oops – link:

      http://www.sfgate.com/politics…..ter#page-2

    4. The debate between certain progs and certain conservatives is: Keeping native wages up by keeping immigrants out, versus keeping immigrants out by keeping wages up.

  15. I wonder if Steve Unz knows there is no statutory cap on wages; he could always buy a string of fast food restaurants and pay his burger flippers fifteen buck per hour.

    I, for one, would be interested in the outcome.

    1. While In-N-Out doesn’t pay 15 dollars an hour to start they pay 10.50 an hour to start. They give fairly decent raises and unlike so many companies that bring in managers from the outside In-N-Out promotes from within retaining their best and most loyal employees by showing them they too can have a future.

      They also offer benefits, paid vacations, 401k plans and free meals.

      1. a. Citations required

        b. Where does In-N-Out fall wrt market share? The purpose of a business is to profit, not to provide social benefit. If the owners of INO choose to do that, fine, that’s their business, but do not hold their model up as “best practice” because they choose to reduce profit to pay their employees more.

        c. McDonald’s provides free meals. At least the one I worked for did.

        1. c. McDonald’s provides free meals. At least the one I worked for did.

          The franchise I worked for provided free drinks, but you still had to pay 50% for your meals.

  16. Steve, Ron, Cletus… whatever.

  17. P5ofeesional coward says, “Get home safe. Fuck those civilians.”

    But questions linger over whether a solitary officer should act as a lone ranger and go in without help.

    “The rule of thumb is never to go in alone. It’s a suicide mission if you go by yourself everywhere,” said Texas-based security consultant Chris Grollnek, a former police officer and Marine who now trains businesses and other organizations how to respond to active shooters.

    1. But experts still disagree whether patrol officers should confront a shooter immediately or wait for backup, especially if an officer is alone.

      Just on a straight utilitarian calculus, it makes no sense for a cop (or any armed person) to stand around while people are being executed in the next room.

      Of course, that calculus gets complicated when you have to start discounting the corpses-to-be because they are mere “civilians”. A one-to-one trade of a cop’s life for a “civilian’s”? Unthinkable.

      I would be curious to know how many “civilian” lives are worth one cop’s life, though.

      1. I would be curious to know how many “civilian” lives are worth one cop’s life, though.

        All of them.

    2. The nation averaged five active-shooter situations annually between 2000 and 2008. Since 2009, that number has tripled, according to U.S. Attorney General Eric Holder.

      Hmm… Interesting timing that. I’m sure there’s nothing untoward going on here though.

  18. tupng is hsrd.

  19. SHAZAAM!

    U.S. President Barack Obama says he wants 2014 to be “a breakthrough year for America” with the creation of “good jobs that pay good wages” and offer Americans “a fair shot to get ahead.”

    Obama said in his weekly address Saturday he wants to work with Congress this year to bring back more of the jobs claimed by the recession or lost to overseas competition.

    The U.S. leader said where Congress refuses to act, he will act on his own “to put opportunity within reach for anyone who’s willing to work.”

    “And thus shall it be, I so proclaim it.”

    1. I look forward to the summer of recovery.

  20. Subliminal Obama:

    “Given the unique power of the state [drones], it is not enough for leaders to say: trust us, we won’t abuse the data we collect [Edward Snowden]. For history has seen too many examples when that trust has been breached [Benghazi]. Our system of government is built on the premise that our liberty cannot depend on the good intentions of those in power[Democrats]; it depends upon the law [IRS] to constrain those in power [Tea Party].”

  21. Best case scenario:

    SCOTUS rules that you do need a warrant. Because warrants are issued pretty much automatically upon cop request, no difference is made.

    The real, fundamental problem isn’t what you do and don’t need a warrant for. Its that warrants are a meaningless formality these days. C’mon, a dog can get a warrant, so who are we kidding?

    1. Even if that best case scenario happens, the only phone searches it would prevent are those where there is no arrest. Once you’re in a cell, they can do what they want with your phone, and if they find something to use against you, they’ll ask for a warrant then.

  22. Anyone notice the most liberal places in the county are the same places that are the first to come down on the side of inhibiting constitutional protections?

    Can we drop the facade that progressives (California courts) are in favor of civil liberties? Progressives have clearly moved to the bottom of the Nolan chart and are straight up government worshiping statists.

    1. The only “civil liberties” progressives understand are things like forcing smokers to go outside and forcing bakers to make cakes against their conscience.

      Freedom from force is a concept they simply do not understand.

      So yeah, they oppose constitutional protections because such protections are limitations on force.

  23. That so called amicus brief has bullshit strewn all over it. Did anyone bother to remember microfiche (microform, microphotography etc) before they wrote such nonsense? It’s been around since 1839, and allowed an individual to carry around a large number of photos, documents, etc.

    Straight up douchebaggery. Government is incapable of protecting natural rights, as they’ve been eroding since the start of the republic (and throught history) . The logical conclusion of government is insanity. The politicians, bureaucrats ans lobbyists all need to go home.

    1. The logical conclusion of government is insanity.

      The logical conclusion of a system where the bad consequences of bad rules result in more bad consequence producing rules, as opposed to removing the bad rule, is a totalitarian state where every nuance of existence is governed by rules backed with violence.

      1. That too :0)

  24. I’m moving. Contained in the moving truck are boxes of my papers and effects. Are they subject to search without a warrant?

    1. There could be moldy potatoes in there, and such mold might get on your socks, which when you walk on the floor could cause babies that crawl on the floor to get sick, along with the maid. We must protect babies and maids from mad potato sock sickness, and therefore must search your moving van.

      Sincerely,
      The gov

  25. Previously, no individual could carry, either on his or her person or in a container, even a small fraction of the information contained in today’s smartphones. In physical form?paper documents, photographs, etc. ? the information would be too bulky and too heavy to carry. Because of those physical limitations, more over, no individual could routinely carry all of his or her personal financial or medical information.

    It doesn’t matter. If each of those things is protected, then they’re all protected in the event we can have them all on our person. Why is my medical records and personal correspondence protected only by themselves? If each would be protected individually, they must also be protected together.

    Furthermore, the 4A doesn’t specify only those effects that one can carry at one time.

    1. It’s ok, because weak people will hide behind the weak politicians whom have to hide behind standing armies and police to threaten everyone with force and acts of violence. Then those weak people will confiscate your stuff and guns, and they will continually vote in more weak people and keep the cycle going, while blaming liberty for all the worlds problems.

  26. We luddites don’t have that problem since we don’t have smart phones, or even cellphones. Why someone would carry all that stuff around with them eludes me, and why someone even needs to always be in contact with everyone confounds me.

    Still I do use a computer at home and work, and yes, you can be damn sure they both have passwords on them.

    The response to “may I look at your … ?” is always “may I look at your warrant?”

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