Tuesday, February 4, 2014

The U.S. Supreme Court Takes on Cellphones and Privacy

Matthew T. Mangino
The Pennsylvania Law Weekly
February 3, 2014
The Fourth Amendment has protected individuals from unlawful governmental searches and seizures for more than two centuries. Initially, the thrust of the Fourth Amendment focused on the homes of early Americans—those places where individuals wanted to remain "secure in their persons, houses, papers and effects."
Today, the Fourth Amendment is being tested in ways that would have been unimaginable when the U.S. Constitution was written.
Last fall, the Washington Post reported that U.S. Supreme Court Chief Justice John G. Roberts Jr. told a room full of college students that the biggest constitutional challenge facing the court was "the fundamental principle underlying what constitutional protection is and apply[ing] it to new issues and new technology."
The Supreme Court will take on another aspect of that challenge when it considers whether police need a warrant to search the contents of a cellphone seized when making an arrest.
This April, the court will hear oral arguments in two cases, Riley v. California, No. 13-132, and United States v. Wurie, No. 13-212. Each case deals with similar, but not identical, technologies. The Wurie case is out of Massachusetts and deals with an old-style flip phone, while the Riley case out of California deals with a smartphone.
Forty years ago, the Supreme Court established the search-incident-to-arrest doctrine in United States v. Robinson, 414 U.S. 218 (1973). Such a search permits an arresting officer to seize and search any item found on an arrestee.
Under the court's ruling, the police could conduct a "full search of the person [of an arrestee], his effects and the area within his immediate reach without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested."
The defendants in the current cases are suggesting that a cellphone is unlike any other evidence that can be found on an individual incident to an arrest.
Judge Norman H. Stahl of the U.S. Court of Appeals for the First Circuit wrote in the lower court opinion in Wurie, "That [cellphone] information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email and voicemail), contacts, calendar appointments, Web search and browsing history, purchases and financial and medical records." He added, "It is the kind of information one would previously have stored in one's home."
Wurie and Riley reflect the deep split between federal appeals courts and state supreme courts regarding the application of constitutional protections to modern technology.
"At least six courts hold that the Fourth Amendment permits such searches, while at least three others hold that it does not," Jeffrey L. Fisher, a Stanford law professor representing David Riley, told the Washington Post.
In 2007, Brima Wurie was picked up in Massachusetts on suspicion of selling crack cocaine. Soon after arriving at the police station, officers noticed that one of Wurie's cellphones, a flip phone that a user must open to make calls, was repeatedly receiving calls from a number identified as "my house" on the phone's external screen.
The police typed the number for "my house" into an online directory and learned that it was associated with an address on Silver Street in South Boston. They went to the Silver Street location and found guns and drugs.
The evidence was used to convict Wurie and he was sentenced to 262 months in prison. The First Circuit reversed the lower court. The appeals court ruled that cellphone information is protected.
The other case is from California, where judges went the other way. The California Supreme Court ruled that police may search a cellphone when the phone is "immediately associated with [the arrestee's] person."
Police examined Riley's cellphone and found information that led them to believe he was in a gang. A photograph on the phone tied him to a shooting. Riley was convicted and sentenced to 15 years in prison.
These cases are a continuation of a line of cases wherein the Supreme Court has methodically taken on issues relating to the Fourth Amendment and evolving issues of technology. In the court's last term, a majority of justices ruled that in most cases, police officers must obtain a warrant before forcing a suspected drunken driver to take a blood test.
Justice Anthony M. Kennedy wrote in Missouri v. McNeely, 133 S.Ct. 832 (2013), that "always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment."
In a separate case, the Supreme Court also found that DNA testing is equivalent to fingerprinting. The high court approved Maryland's law that allows police to take DNA swabs at the time someone is arrested for a serious violent crime.
In Maryland v. King, 569 U.S. ___ (2013), the court held that "taking and analyzing a cheek swab of the arrestee's DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment."
Kennedy wrote in King that the swabbing procedure was a search under the Fourth Amendment and therefore had to be justified as reasonable under the circumstances. The procedure was reasonable given "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody."
Last year, the Supreme Court unanimously ruled that the police violated the U.S. Constitution when they placed a GPS tracking device on a suspect's car and monitored its movements for nearly a month.
Walter Dellinger, a lawyer for the defendant in United States v. Jones, 565 U.S. ___ (2012), told The New York Times the decision "is a signal event in Fourth Amendment history."
"Law enforcement is now on notice," he said, "that almost any use of GPS electronic surveillance of a citizen's movement will be legally questionable unless a warrant is obtained in advance."
The decisions in Riley and Wurie will be closely scrutinized. Will the Supreme Court restrict or expand the protections of the Fourth Amendment? The high court's record in recent decisions provides little guidance. 
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," is due out this summer. Contact him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.
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