Fourth Amendment

Supreme Court To Rule on Cell Phone Privacy

Do cops need a warrant to search your cell phone when you're under arrest?


The Fourth Amendment protects our "persons, houses, papers, and effects, against unreasonable searches and seizures." That includes the cell phones in our pockets, and the many private messages, photos, and videos those devices contain. But what happens if we get arrested for a minor (or major) infraction? Do the police now have the lawful right to search our cell phones for incriminating material without a warrant? Or does the Constitution still act as a shield?

The U.S. Supreme Court will address those questions next month when it considers a pair of cases testing the reach of the Fourth Amendment in the age of the smartphone. The Court's response has the potential to impact the lives of countless of Americans in their dealings with the police.

Both cases began with criminal arrests. In the first case, Riley v. California, San Diego police conducted a routine traffic stop and discovered two guns hidden under the hood of the car. After bringing the suspect back to the station, the officers proceeded to conduct a warrantless search of his smartphone, where they discovered videos, photos, and text messages they believed tied him to a gang-related shooting. That evidence later helped the prosecution gain a conviction.

In the second case, United States v. Wurie, Boston police arrested a suspected drug dealer. Back at the station, they noticed his flip-screen cell phone was receiving multiple calls from a number identified on the outer screen as "my house." According to the officers, they suspected this might in fact be the dealer's "stash house," so they traced the number back to an address, and later raided the residence, turning up illegal drugs. In both cases, the officers had ample time to obtain a search warrant before digging around in the respective cell phones.

According to a long line of Supreme Court precedent, the police do not need a warrant to search the individuals they arrest, and that includes both the persons and possessions of the arrestees, including any bags, containers, or other items they were carrying. Furthermore, the police may conduct a warrantless search of the immediate vicinity around the arrest site. This exception is designed to help law enforcement prevent the destruction of evidence and to discover any evidence or weapons that might have been concealed.

The rise of the cell phone complicates this picture. Unlike diaries, notebooks, or briefcases, all of which the police are allowed to search incident to arrest, cell phones contain previously unimaginable amounts of personal information, including not only words and images but also GPS location data. In other words, should getting arrested for a minor offense like jaywalking be sufficient to allow the police virtually unlimited access to your private affairs in search of additional wrongdoing?

The lower courts are divided. In 2013, the California Supreme Court ruled against David Riley, letting the warrantless search of his cell phone stand. The U.S. Court of Appeals for the 1st Circuit, by contrast, ruled against the police that same year in the Boston case, adopting a "bright-line rule" that "the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee's person" under any circumstances.

The Obama administration has sided with the police. "Although cell phones can contain a great deal of personal information," the administration argues in its Wurie brief, "so can many other items that officers have long had authority to search, and the search of a cell phone is no more intrusive than other actions that the police may take once a person has been lawfully arrested."

The lawyers representing David Riley take the opposite view, comparing a warrantless cell phone search incident to arrest to the "odious colonial-era practice of executing general warrants—warrants that enabled officers to rummage though people's homes and offices for whatever incriminating items they might find."

An amicus brief filed by a group of Fourth Amendment scholars urges the justices to strike a balance. "Rather than allowing warrantless searches of cell phones incident to arrest," the brief argues, "the Court should encourage law enforcement officers to place cell phones in [aluminum-lined] Faraday envelopes or aluminum foil to prevent the remote wiping of data from the phone while officers seek a warrant." This approach has the virtue of allaying any law enforcement concerns about the destruction of evidence while still respecting the citizenry's constitutional rights.

Oral arguments in Riley v. California and U.S. v. Wurie are scheduled for April 29, 2014.

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  1. Prediction: the court will let the pigs do whatever the fuck they want.

    1. Thom: too obvious.

      What we need is predictions, overall loss (6-3, 7-2?) and which judges ruling which way. The lefthand quartet will be conflicted, on one hand, they claim to be “liberals”, but they are pretty much in the bag for the dems. Scalia and Alito would traditionally support law and order, but they hate the dems, so who knows. Thomas should be a safe “no”, but he signed on to the “administrative search” reasoning years ago, so you never can tell. Roberts is just a loose cannon. Kennedy will consider it all without prejudice, but lawrdy knows which way he’ll decide. I’m figuring 6-3 to for the cops, but I can’t figure who will be white hats and who will be black hats.

  2. Recording a cop should be prosecutable under wiretapping laws but a cop searching someone’s phone in no way violates the Constitution.

  3. “The Obama administration has sided with the police. “Although cell phones can contain a great deal of personal information,” the administration argues in its Wurie brief, “so can many other items that officers have long had authority to search, and the search of a cell phone is no more intrusive than other actions that the police may take once a person has been lawfully arrested.”

    Yeah well f@ck you Obama administration. You see cell phones have this nifty little thing called a lock on it, unlike many other personal effects. And since I don’t have to give the cops my password, f@ck them as well.

  4. It’s not a cell phone – it’s a tax.

  5. while officers seek a warrant

    And if I thought that officer Safety & co. would have even as much trouble as the cast of L&O getting that warrant I might feel a little better about the idea.

  6. When warrants are essentially rubber stamped at the whim of police these days, the minor protection of requiring one seems to be at the very least, a prudent measure to protect against abuses.

  7. San Diego police conducted a routine traffic stop and discovered two guns hidden under the hood of the car.


  8. Um, point of order, how do you find two guns under the hood of any car during a routine traffic stop?

    “Sir, do you know how fast you were going? License, registration, oh, and pop the hood.”

    1. Exactly.

      Unless it was one of those

      *** smash ***

      “I pulled you over for a broken taillight and”

      *** smash ***

      “a broken hood release.”

  9. what happens if we get arrested for a minor (or major) infraction? Do the police now have the lawful right to search our cell phones?

    The President should simply issue an XO stating explicitly they have the right (if we are arrested) to search anything “possibly related to” us, and be done with it.

  10. All the privacy invasions should eventually result in devices of heightened security. Pissing people off will result in demand for devices that can only be unlocked by the owner. At that point the police will lose access to that evidence forever. At the current rate of gov-based privacy invasions, I give it 10 years before it becomes the norm.

    1. Pissing people off will result in demand for devices that can only be unlocked by the owner.

      There was a case where a Canadian dude’s laptop was confiscated at the border, then the guy was ordered by an American judge to hand over his password.

      Admittedly it involved a border crossing and a non-American, but there’s precedent for coercing someone to hand over password. And no, the 5th Amendment doesn’t apply as the password itself doesn’t incriminate the owner.

      1. Again, the technology could come to the rescue in that area as well. Alternate passwords could be set up for a destructive delete of sensitive folders.

        1. If you really have something you want to keep private then you should look into encryption with hidden partitions. It isn’t perfect, but its the best protection a layman can use with reasonable success.

  11. Technology! What is the over and under on the number off Supreme Court Justices who have never personally used this new fangled cell phone thingy? Maybe they’ve seen their grand children use one.

    1. I’d say 8. Ruth totally looks like an angry bird maniac.

  12. Simple-minded schmucks can wear robes from the highest closets. Sigh.

  13. So will the hipsters with their iPhones be as quick to parse the exact wording of the 4th amendment (it says “papers”), as they were to parse the second amendment and its use of “militia”?

    Somehow I would guess that this will be filed under “that’s totally different dude, I own an iPhone”.

  14. It seems to me the lower courts should have ruled the opposite ways.

    Riley involved an intrusive search after taking him into custody.

    Wurie involved a number that appeared on the outer screen, followed by a search of publicly available information, and as such was not intrusive at all.

  15. There’s a pretty easy way to make this an irrelevant possibility.
    Step 1) Buy an Android smartphone.
    2) Root it.
    3) Set a secure screenlock password that you will feel comfortable using (e.g., one that isn’t extremely long) to unlock your phone.
    3) Encrypt your phone.
    4) Download an app like Encpasschanger that will allow you to use a different password for disk encryption.
    5) Choose a new password. This is the one that will be used to encrypt your phone. Make sure that it is a)16 characters or less in length, b) something you can remember WITHOUT writing it down, and c) SECURE.

    In this case, the best way to choose a secure password is to use diceware (google it!) and insert a random number and a random symbol. So you’ll wind up with a password that looks like this PipePaperFill2! (according to GRC’s Password Haystack, that would take 1.49 million centuries to break at 1 trillion guesses per second.)

    Alternately, you can do something like take a common phrase and combine it with an emoticon so that you wind up with something like :Hello-Iloveyou) (accord to PH, that would take ~23.89 million centuries to break at 1 trillion guesses/second.)

    1. In any case, the key is to choose a long, secure password that you can remember without writing down and that can’t be easily guessed by using personal information (like using your birthday as the password), using a dictionary attack (such as Tobeornottobe) or common number-letter substitutions (such as 2b0rn0t2b.) If you consistently use secure encryption, you will have greatly enhanced your chances of preserving your privacy!

    2. I should add that android sometimes has issues with using special characters in the disk encryption password, so contrary to my suggestion above, you might want to avoid using any symbols aside from !, @, #, etc.

    3. Sounds great but too bad its not actually secure.

      Passwords themselves are a weakness which is why many systems have gone to two factor authentication.

      I hope your password example is just an example of case and simple use because any password regardless of complexity that uses words found in common dictionaries or word list is inherently insecure.

      For this to really work you’ll have to have a secure build of the os with secure boot loaders and no software or hardware backdoors. Not likely to happen on a mainstream device.

      The only way to be truly secure on a cell phone is not to use it for anything personal.

      1. 1) You’re absolutely correct that nothing is absolutely secure. HOWEVER, for the average person, this level of security would probably be more than an adequate to protect their cell phone from being rifled through by the Podunk County Sheriff Dept or something.
        2) By way of defense of dictionary-based passwords, close only counts with hand grenades and horse shoes. Three words is a lot shorter than anything that should ever be used in for really good security, but unless the people who are trying to get your data have a dictionary attack that will guess that password, they have to brute force it.

  16. The Court will apply a totality-of-the-circumstances approach balancing the degree of intrusion on an arrestee’s (reduced) privacy rights against the cops’ justification for searching the arrestee’s cell phone, i.e., to gather evidence of the crime that the arrestee committed.

    The Court will hold that the limited search of drug-dealer Wurie’s cell phone (where the cops only searched the call log to determine Wurie’s home telephone number, after seeing the “My House” notification in plain view on the front of his cell phone, in order to get a search warrant for Wurie’s house and seize his dope stash) was “reasonable” under the Fourth Amendment. At least six justices will agree with this holding.

    But the Court will hold that the broad search of Riley’s cell phone (where Riley was only arrested for a misdemeanor of carrying concealed guns and the cops didn’t have probable cause to arrest him for any felony before they searched his cell phone looking at text messages, photos and videos) was “unreasonable” under the Fourth Amendment. At least seven justices will agree with this holding.

    At present, some lower courts say that these warrantless searches are never permitted. And some lower courts say that they are always permitted. As I predict, the Supreme Court will reject both extremes and hold that in some circumstances (as in the Wurie case) they are permitted, but in other circumstances (like the Riley case) they are not constitutional.

  17. So if I’m carrying a laptop or a tablet when I get pulled over do they have the right to search it?

    The hardware and technology is analogous so how would they be justified any differently? There’s a risk that if they open the door for one then they’ve opened the door for all of them.

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