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Fourth Amendment in the digital age: Supreme Court to decide if police can search cellphones without a warrant

The outcome of these two cases depends on a digital-age interpretation of an 18th century phrase


Sarah Gray
April 29, 2014 9:20PM (UTC)

Today the Supreme Court is hearing two cases on law enforcement's ability to search a person's cellphone without a warrant. It is an important decision in a time where a hand-size device can contain troves of personal data, some of which may or may not be pertinent to a case.

What do these cases mean?

The decisions boil down to the Fourth Amendment: What are "unreasonable searches and seizures"?

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The decision could affect a wide swath of the population. The New York Times notes that "12 million people are arrested every year, often for minor offenses, and that about 90 percent of Americans have cellphones."

Currently, the courts allow law enforcement to do warrantless searches when a person is arrested. For example, if someone is pulled over and a cop has probable cause he might check the car. This is often justified as a way to ensure police safety and avoid the destruction of evidence.

In its entirety the Fourth Amendment reads:

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"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

But what about a cellphone? Can a cop flip through your contacts, or browser history or Dropbox without a warrant? Are those "papers" or "effects," or not?

What cases are being heard?

The two cases being heard are on opposite ends of the spectrum. The first is Riley v. California. In 2009, David L. Riley had an expired car registration, and was pulled over in San Diego. Police also found two loaded guns and text messages that associated him with a gang. A further search of the phone linked him to an attempted murder. He was convicted and received 15 years in prison.

Both the guns and phone were found without a warrant; a California appeals court ruled that the search was like going through a person's wallet or address book and did not require one.

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The second case is United States v. Wurie. Brima Wurie was arrested in Boston in 2007 on drug and gun charges. Officers searched his flip-phone's call log without a warrant. A Boston federal appeals court threw out the cellphone records as evidence. Judge Norman H. Stahl wrote, “Today, many Americans store their most personal ‘papers’ and ‘effects’ in electronic format on a cellphone, carried on the person.”

And the arguments?

The argument against warrantless cellphone searches states that the vast amount of data on a cellphone is equivalent to a much more invasive search -- one that requires a different standard than checking a suspect's car or wallet.

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"The search of a cellphone today can reveal as much about ourselves as the search of a home," the ACLU's Steven Shapiro said, according to Mashable. "The police generally need a warrant before they search our homes and they should need a warrant before they search our phones."

However, law enforcement and Obama administration prosecutors fear that if they have to wait for a warrant, a criminal might have the ability to remotely wipe out cellphone evidence. They also worry that a cellphone could be used as a weapon (for instance to detonate a bomb).

Fixes, including wrapping a phone in tin foil, using a faraday bag or turning the phone to airplane mode, have been suggested as ways to avoid remote destruction of evidence.

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h/t New York Times


Sarah Gray

Sarah Gray is an assistant editor at Salon, focusing on innovation. Follow @sarahhhgray or email sgray@salon.com.

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4th Amendment Cell-phones Supreme Court Technology Unreasonable Search And Seizure Warrents

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