Thursday, June 26, 2014

Hands off my cell phone!

The U.S. Supreme Court's decision yesterday in Riley v. California and related United States v. Wurie, Nos. 13-132 and 13-212, has far-reaching consequences for all law enforcement activities and my clients. The decision that the police may not generally search a cell phone/smart phone without a warrant even after an arrest is far-sweeping because the police routinely search cell phones of detaines, arrestes, regardless of circumstances or any suspicion of crime. When for whatever reason you are detained by police, they take possession of your cell phone, they start intrusive search of all its contents immediately.

In one of my cases, client was stopped for a traffic violation. Then the police asked him to step outside and searched his car. They found marijuana in a jar. Despite the fact that client  displayed his medical marijuana card and was lawfully in possession of the marijuana, they detained him and took him to the station, pending further investigation. On route to the station, while in the police car, the client's phone was repeatedly ringing. The police officer, who had taken possession of his cell phone, answered the call, and a had brief conversation with the caller, impersonating the client. Based entirely on that one-minute phone conversation, client was charged with possession of marijuana for sale. I brought a motion to suppress the seizure and search of his car and the consequent actions of police in intruding upon the privacy of his cell phone, but my motion was denied.

This activity by police has become the order of the day. Routinely the police obtain evidence of crime by intrusive and warrantless searches of cell phones, smartphones, that carry all the intimate information of individuals. On a daily basis, the police detain and arrest individuals but then after search of cell phones they add draconian charges against them based entirely on the information they obtain from cell phones. Think about how much you carry in your cell phone and how you would feel if it gets into the hands of anyone else, not speaking of the government.

It is very rare that the United States Supreme Court issues a unanimous opinion. We are altogether accustomed to 5-4 decisions. But the idea that the government can have such absolute right to intrude upon your privacy stored in your cell phone has shocked even the most conservative of our Justices. Specifically, the Court legally and most appropriately limited the warrantless search incident to lawful arrest exception enunciated years ago in U.S. v. Robinson, 414 U.S. 218, (1973) and refused to extend it to cell phones. The court drew the distinction in the vast amount of private information stored in digital form in modern cell phones and the expectation of privacy drawn from it. The cigarette pack that was searched during a patdown in Robinson could not even come close to the amount of private data stored in smartphones. The balancing of the governmental legitimate interests-- officer safety and destruction of evidence-- with such high degree of privacy interests in a cell phone, tilted in favor of upholding the privacy rights. 

The Court simply noted that the government interests here are minimal in comparison with the privacy intrusion. First, digital data does not pose immediate safety risk to the officers to legitimate the need for search without a warrant. Second, ephemeral destruction of evidence through modern technology as a reason for warrantless search also did not convince the Justices, simply because there was no evidence presented to suggest that this is even common. Particularly because the cell phones taken into possession by police are secured and stored and not accessible to arrestees and any concerns regarding remote wiping and destruction of data can be resolved by other targeted methods rather than warrantless intrusion into the privacy of one's cell phone. Relying on Chimel v. California, 395 U.S. 752 (1969) the Court made a broad and swift ruling, reiterating the heightened privacy interests in modern cell phones. As Justice Roberts noted, "Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse." The storage capacity of modern cell phones permits individuals to carry all their lives in them, something they would never be able to do in a purse or a wallet. It is simply unbearable to permit the government to intrude upon such heightened expectation of privacy. "Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house..."

In short, the Court declined to extend the search incident to arrest exception to the warrant requirement for cell phones. Unless there are well-articulated exigent circumstances, which has been another exception for warrant requirement, the police must secure a separate warrant for search of your cell phone, even when you are lawfully arrested for a crime. In conclusion, Justice Roberts reaffirmed the Fourth Amendment principles by stating, "Modern cell phones are not just another technological convenience. With all they contain and all thay they may reveal, they hold for many Americans the 'privacies of life.' The fact that technology now allows the individual to carry such information in his hand does not make that information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-- get a warrant."

The upshot is that the police will have to routinely seek a warrant before searching the contents of your cell phones. Certainly, they will have to articulate probable cause for the search in their affidavits before judges sign the warrants. Then it is up to your lawyer to traverse the search warrant and argue that the police concocted the probable cause for the search of your cell phone.

Hands off my cell phone!

No comments: