Politics & Policy

Smart Phones at the Supreme Court

Are the contents of your phone “papers and effects”? The high court considers the question.

The U.S. Supreme Court heard arguments Tuesday in a case that could do for privacy protections what the iPhone did for wristwatches and paper maps.

Today’s smartphones containing so much information about us – including social media accounts, GPS tracking, bank accounts, and pictures — and they are essentially carried everywhere we go. Not surprisingly, they can be a goldmine to police officers, if they cops are allowed to search them.

This is what the two cases heard by the Supreme Court today addressed. The first, Riley v. California, involved a San Diego man, David Riley, who was pulled over for having expired tags on his car and a suspended driver’s license. Upon deciding to impound his car, the police officers found firearms and Riley was arrested and his smartphone seized. One of the police officers immediately searched the phone and found evidence that Riley was a member of a gang. Two hours later, police searched the phone again, without a warrant, and found credible evidence that Riley was involved in a previous shooting. Riley’s attorney argued that police did not have the authority to search the phone’s contents without a warrant.#ad#

The second case, United States v. Wurie, revolved around an older-model flip phone. A Boston man, Brima Wurie, was arrested for distributing cocaine. After noticing that a single number, entitled “my home,” kept calling the cell phone, the officers pressed two buttons to find out the phone number attached to “my home.” They searched the number in an online white-pages phone directory and found the address of an apartment. After searching the apartment, the police found more drugs, cash, firearms, and ammunition, and Wurie was charged with crimes including possession with intent to distribute. The question proposed to the court in this matter is: Does the Fourth Amendment allow for a warrantless search a cell phone’s call log?

With 90 percent of American adults owning cell phones and 58 percent owning smartphones, cell phones are increasingly essential to the average American’s way of life. The average smartphone holds truckloads of information about the owner. Under the Fourth Amendment, which prohibits unreasonable search and seizure, can this information be searched if a person is pulled over by a police officer?

Of course, normally, under the Fourth Amendment, police officers are required to obtain a warrant before an extensive search, but a few exceptions are granted. As Justice Sonia Sotomayor stated, “The law is that you need a warrant and we’ve made exceptions to this.” One of these exceptions allows police officers to search a person and their surroundings upon arrest so as to preserve evidence and ensure the officers’ safety. This exception raises the question: Since most smartphones are usually on a person’s body, are they entitled to be searched by means of the exception?

As Justice Elena Kagan pointed out, searching a smartphone is not the same as searching a wallet. “People keep their whole lives on their phones. . . . It’s a different world,” she stated. Kagan gave the example of a police officer pulling someone over for a DUI and searching their phone. In that case, the government would have access to every email the person have ever sent. The justices also noted that a person’s bank-account balance, private pictures, and other information would readily available without a warrant.

The discussion turned on whether police need to obtain a warrant to search a cell phone. As Jeffrey Fisher, the petitioner in Riley, said, “There are profound problems with searching a smartphone without a warrant.” Fisher further posited that the warrant would have to be very specific about which apps could be searched.

That argument got a skeptical reception. Justices pointed out that removing the smartphone from a suspect’s possession and searching it on the spot could save police officers from harm. For example, they could find a text sent right before the arrest wherein a suspect asks his fellow gang members for assistance. If police officers had to wait hours for a warrant to read that text, they could be ambushed.

The counsel in Wurie insisted that the police should only be allowed to answer a ringing cell phone if they obtain a warrant, to which the justices reiterated the possibility of an ambush by fellow gang members.

Smartphones have allowed us to control our whole lives every second of the day, but that power comes with a potential price in privacy. Anyone viewing our phones can see our lives neatly laid out in front of them, including the police. The Constitution guarantees us security in our personal “papers and effects.” The high court’s decision in these cases could determine whether that protection applies in a world where your papers and effects can fit in your pocket.

— Christine Sisto is an editorial assistant at National Review.

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