High court to examine cellphone privacy

2:58 PM, Jan 17, 2014   |    comments
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WASHINGTON -- Delving into the legal jungle of privacy and technology, the Supreme Court agreed Friday to consider two cases that test whether cellphones and smartphones can be searched without a warrant.

The cases, which could be heard by the court in April and decided by late June, involve searches performed by police that turned relatively minor traffic and drug infractions into major felony convictions. In both cases, the crucial information was found on the suspects' mobile phones.

On one level, the cases represent an inevitable Supreme Court entry into the world of cellphones, owned by more than nine in 10 American adults. In the past few years, courts from California to Texas to Florida have split over the issue of cellphones and digital content.

On another level, the cases may be just a precursor to more expansive and potentially explosive high court inquiries. Those could include an examination of the National Security Agency's phone and computer surveillance methods, on which two federal district judges have diverged in recent weeks.

In the past few years, the high court has ruled on the use by police of other innovations, such as GPS devices and thermal imaging. The justices generally, but not always, have come down on the side of privacy rights.

Not far behind the issue of cellphone searches is another legal conundrum: whether police can get the location of cellphone users from service providers without a warrant. Lower courts have split on that issue as well, making a Supreme Court showdown likely in the future.


Several justices have acknowledged that the clash of privacy and technology is likely to dominate the court's docket for years to come. That's worrisome because they live in a marble palace of ivory paper and quill pens.

"Frankly ... we're not all technologically expert," Chief Justice John Roberts said in a 2012 speech. More recently, Justice Elena Kagan quipped that "e-mail is already old-fashioned, and the court hasn't gotten to that yet."

The facts about what police can do when making an arrest have been clear for 40 years: They can search the person being arrested and what's within reach, with an eye toward weapons or evidence that could be destroyed.

Cellphones and, increasingly, smartphones that mimic computers have clouded those facts. At least six federal or state appellate courts have ruled that they are fair game; at least three others have said search warrants are required.


The two cases that the court will hear have reached opposite conclusions so far:

In U.S. v. Wurie, police opened Brima Wurie's flip-phone to view the phone number associated with repeated incoming calls. That led them to get a search warrant for his apartment, where they seized crack cocaine, marijuana, cash, a firearm and ammunition. Wurie was convicted and sentenced to more than 20 years in prison.

The 1st Circuit appeals court reversed on two counts, ruling that the cellphone search violated Wurie's constitutional protection against unreasonable search and seizure.

The Justice Department asked the Supreme Court to take the case, contending that "police have full authority not only to seize any object they find on an arrestee, but also to search its contents."

In Riley v. California, a routine traffic stop led police to discover David Riley's suspended license. They impounded his car, found two guns under the hood, and arrested him for concealing weapons.

Upon his arrest and again at the police station, they searched his Samsung smartphone, including text messages, photos and video. Based on that evidence, Riley was convicted and sentenced to at least 15 years in prison; the conviction was upheld at the state appeals court, and the state Supreme Court refused to reconsider it.

"A cellphone nowadays is a portal into our most sensitive information and the most private aspects of our lives," says Jeffrey Fisher, lead attorney for David Riley and co-director of Stanford University's Supreme Court Litigation Clinic. "It's also a device that is the gateway to your office, health records, bank records."

The Pew Research Center estimates that 56% of Americans have a smartphone, 31% seek medical information on their cellphones, and 29% use them for online banking.

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