Saturday, June 28, 2014

The Cautionary Instruction: High Court rules cellphone contents protected

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 27, 2014
The U.S. Supreme just made it more difficult to continue an investigation of criminal conduct incident to the arrest of a suspect.
In Riley v. California and United States v. Wurie, the court said that with rare exceptions, the Fourth Amendment requires that police obtain a search warrant to probe the contents of cellphones in the possession of arrestees. Rejecting government assertions of the need for quick access to the contents of cellphones, the court stressed the damage to personal privacy that would result from police seizure of devices that “place vast quantities of personal information literally in the hands of individuals.
The law prior to these decisions provided that an arresting officer may search an arrestee to discover and remove weapons and to seize evidence to prevent its concealment or destruction. Included in virtually every search is a cellphone.
“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ ” Chief Justice John Roberts Jr. wrote for the court. He added that cellphones and smartphones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
While the decision will offer protection to the 12 million people arrested every year, many for minor crimes, its impact will most likely be much broader. The ruling almost certainly also applies to searches of tablet and laptop computers, and its reasoning may apply to searches of homes and businesses and of information held by third parties like phone companies, wrote Adam Liptak of the New York Times.
“This is a bold opinion,” said Orin S. Kerr, a law professor at George Washington University. “It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.”
The court also held that while the police may not search the cellphone data, they may search the cellphone itself to make sure it cannot be used as a weapon. Justice Samuel Alito filed a concurring opinion, noting that he was not convinced that the rule on searches incident to arrest is based on the need to protect the safety of the arresting officers and the need to prevent the destruction of evidence.
The justices said the police are not “without specific means” to address their concern about the remote wiping of a cellphone to remove evidence. “Remote wiping can be fully prevented by disconnecting a phone from the network,” Roberts wrote. The authorities, he said, can turn the phone off or remove its battery.
(Image: Evan Vucci/Associated Press)

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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