Administration Keeps Chipping Away At The Fourth Amendment; Asks Supreme Court To Allow Warrantless Cell Phone Searches

from the law-enforcement-increasingly-hassled-by-inconvenient-laws dept

Considering what’s come out about the NSA’s domestic surveillance “accidents,” it almost makes you wonder why the government would bother. Surely this information is accessible by other means. In an apparent effort to be thorough in its dismantling of the Fourth Amendment, the administration has asked the Supreme Court to rule that this amendment provides for the warrantless search of cell phones.

Here are the details of the case being argued:

In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns.

The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man’s argument, ruling that the police should have gotten a warrant before accessing any information on the man’s phone.

Now, without getting into the arguments the government raises, not the least of which is that the courts are very divided on the subject, there’s the issue of the search itself and the circumstances surrounding it.

The path of least resistance is preferable for both the government and the affected law enforcement agencies. But what we’re dealing with here is persons already under arrest. They’re not going anywhere, unlike people who have only been “detained.” Why is it necessary to bypass the warrant process when you already have the suspect locked up? Even if something appears to be time-critical, there are ways around the process — like waking up a judge in the middle of the night or using any of the emergency exceptions built into these laws.

Is it really necessary to grant law enforcement the right to search through someone’s cell phone without a warrant? It’s certainly not a good idea, as cell phones today carry a lot more data than they did back in 2007, when the cell phone in question was a flip-phone that held little more than messages and phone numbers.

The government’s selection of this case to press the warrantless search issue is conveniently short-sighted, as Orin Kerr points out at the Volokh Conspiracy

[United States v.] Wurie involved a search in 2007, and the search of the phone was pretty narrow. The First Circuit described the phone as “gray Verizon LG phone,” and it noted that the phone had an “external caller ID screen on the front of the phone” and that had to be opened to be used. In other words, it wasn’t a so-called smartphone.

Kerr suggest the government would have been more helpful in setting precedent by taking a case involving phone hardware as we know it today, like Riley v. California, where an actual smartphone was searched without a warrant. The search in Wurie involved flipping open the phone and scrolling through the call log. The search in Riley was much more involved.

According to the lower court opinion, the officer first “looked at Riley’s cell phone, [and] he noticed all of the entries starting with the letter K were preceded by the letter C, which gang members use to signify ‘Crip Killer.’” It sounds like this was a text search through the phone, although it’s not entirely clear. Second, the officer later “looked through the phone and found some video clips” and “some photographs.” This sounds like a more extensive search through the contents of the phone.

The government and various courts have often compared cell phones to physical objects like address books or diaries. Even when granting the right to do limited warrantless searches of cell phones, the courts have drawn a line between what should be accessed and what shouldn’t.

It’s not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993), they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone.

The problem is that the government has apparently cherry-picked a case in order to get the ruling it wants, limiting its arguments to the glorified phone books cell phones once were. And that’s a bad idea, as Orin Kerr flatly states:

Reviewing a case with an earlier model phone would lead to a decision with facts that are atypical now and are getting more outdated every passing month.

The last thing this country needs is more outdated laws and rulings — the kind often misconstrued and broadly applied to cover technological advances not even hinted at, much less imagined by legislators and courts. Giving law enforcement the freedom to warrantlessly search today’s phones is roughly equivalent to giving them permission to enter someone’s home and search their computer. At least the administration didn’t cite the state of Texas’ assertion that searching a cell phone is no different than searching through someone’s pants.

But, at the end of 105 pages, one has to ask: how hard is it to acquire a warrant to search an arrested person’s cell phone? The arguments here seem to indicate that getting a warrant is a nearly insurmountable task when in all reality, it’s rarely more than a light hassle. The idea that the Fourth Amendment should be protected and upheld seems to be a non-starter with those advancing this argument. Unfortunately for all of us, it’s our own government sacrificing our privacy in order to cut a few corners.

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Comments on “Administration Keeps Chipping Away At The Fourth Amendment; Asks Supreme Court To Allow Warrantless Cell Phone Searches”

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Anonymous Coward says:

there seems to be nothing more important than the Government and it’s various representing bodies and people. the rights of the people are not only violated, they are completely dismantled for the flimsiest of reasons, if any reason at all. the problems with this sort of request are that
a)they are just the thin end of the wedge
b) under a whole lot of instances, the courts are either shit scared of the government or over eager to do what the government wants. either way, the people lose yet another protection that is supposed to be a building block of a free, private, democratic society

out_of_the_blue says:

Well, like using Google, you CHOOSE to have a phone, right?

I’m using DannyB’s logic from a just prior topic. And everyone knows about the ruling which this would only extend: Google itself used it last week, remember? You don’t have any expectation of privacy once you’ve handed it over to a 3rd party!

So how the HELL do you kids expect to keep your info from the gov’t once you give it to Google?

Now, before the usual trolls start ranting that this has nothing to do with Google: YES IT DOES. ALL SPYING IS BAD. You CANNOT split spying into “good” and “bad”, or gov’t and corporate types. It’s ALL inherently bad, cannot be made good, not even if YOU personally are getting money via Google. You’re profiting by invading privacy.

And it’s MORE excusable for gov’t to spy, NOT less. — That does NOT mean I’m for gov’t spying as some of you perverts will try to claim. — We need to START putting some limits on spying by starting at the corporate level.

Anonymous Coward says:

Re: Re: Well, like using Google, you CHOOSE to have a phone, right?

@ “Rikuo

But for some fucking reason, you seem to focus more or less exclusively on Google alone.

WE AGREE ON THE NSA, DON’T WE? Why would I argue on what we agree? My point is that there is NO “good” kind of spying, but you make a characteristically STOOPID non-point of noisy contradiction like the little ankle-biter you are. ARF!

Anonymous Coward says:

Re: Re: Re: Well, like using Google, you CHOOSE to have a phone, right?

So why do you invite a peeping tom into your home?

Don’t use Google.

Is not like the government that rapes your rights.

Aside from that, here is a technical point, is it spying when you willingly give it to them all that information about yourself?

I don’t want any government trying to protect me from my own stupidity, the government is worse and thuggish, Google I can tell to take a hike, the government I have to “obey & serve” or ELSE.

And you know what, you probably is the root of all this nonsense after all, that culture of “people need to be protected”, “we must do something”, “we must stop everybody from doing something that I don’t agree” is exactly the fraking problem, it starts with the public, and it invades its public services to become a horror story.

out_of_the_blue says:

Re: Well, like using Google, you CHOOSE to have a phone, right?

By the way, explicitly: the FLAWED premise is that we must accept SPYING in order to have the benefits of technology.

But in fact, our legislators COULD overnight simply outlaw Google and other corporations collecting enough data to track us with. Of course they won’t. But Google tracking you is not carved in stone, kids. A different world existed before you were born.

TWO baboons with mere contradiction already.

Anonymous Coward says:

Re: Well, like using Google, you CHOOSE to have a phone, right?

Ootb, we all know by now that you are stupid, no need to violate the corpse any longer.

Google is optional, Google doesn’t have the power to coerce that information from you, Google can’t search your home, Google can’t seize and search your belongings, so yah there is a big difference, on the one side you have stupid people who give it all to Google willingly on the other you have a government that takes all by force, those are not the same thing.

To end the Google spying network you just need to chose to not use it at all is that simple.

As for your assertion that is MORE fraking excusable for a government to spy with thuggish intent and purpose on its own citizens, I have to disagree, you are out of touch with reality, to get rid of Google spying I only have to use any of the numerous others options available, what other options for your law enforcement and government do you have?

Anonymous Coward says:

It’s all about winning. The police and gov’t can’t admit that an officer made a rookie mistake that rightfully should have gotten the case thrown out.

Now granted… if the cops did arrest him legally and found drugs in his car upon the arrest, than he really doesn’t have a chance anyways. He already got caught with illegal materials.

The DA could have argued inevitable discovery… saying that by having the phone eventually they would have found the house anyways… unless he had been living and operating out of a house not legally registered under his name.

We also don’t know if the phone was pre-paid or a subscription based phone that would have sent bills to the home… Again inevitable discovery, assuming once more that there weren’t other people living there who might have cleaned up.

There’s not really enough information available to know if any other theoretical routes the DA could have taken to keep this would have worked… so all we know is that a cop searched a phone without a warrant.

Rather then explore those avenues, they are trying to argue that the rookie mistake is legal and further erode our rights and liberties…. a sad day for our country.

Anonymous Coward says:

The one calling troll should go look in the mirror to see what a real troll looks like. Have some more report votes ootb. The only one hollering Google is once again you.
Cell phones have become much more than dumb phones. More similar to computers than phones. Just shy of personal secretaries. As such they hold far more personal information than a phone book would about you.

This is a real bad idea.

John Fenderson (profile) says:

Re: Re:

Actually, considering that the cell phone was repeatedly receiving calls, it was appropriate to search it immediately. Some phones have a limited history, and newer calls might overwrite older ones.

This is a flawed argument, for three reasons: First, the call log on even old phones isn’t that short. Second, if there’s a high call volume, then either a small number of people are calling a lot — in which case, any call that has been overwritten will be replaced with a newer call containing the same information, or a lot of people are calling a little — in which case, any individual call is likely to be of little value. Third, the call that they were looking up was labelled “My Home”, which means that the number was in the address book and could be looked up at any later time with no loss of information.

mattshow (profile) says:

For any Canadians reading this, remember that the Ontario Court of Appeal earlier this year heard a similar case and held that the search of the cell phone was justified as “search incident to arrest”. The case has been appealed to the Supreme Court, so we should have a nation-wide judgment on the issue soon (ish):

R. v. Fearon

[2] The appellant, Kevin Fearon, was arrested for robbery while armed with a firearm. Upon his arrest, a police officer conducted a pat down search and located a cell phone on his person. The officer examined the contents of the phone and found photographs of a gun and cash as well as an incriminating text message. The appellant was brought to the police station and placed in an interview room. When the police returned after unintentionally leaving him alone for five hours, he gave a full videotaped confession. Throughout his confession he maintained that the firearm used in the commission of the robbery was an imitation handgun.

[3] At trial, the appellant sought to exclude the evidence that had been obtained from his cell phone upon his arrest. He claimed the search of the cell phone incident to arrest was a breach of his right to be free from unreasonable search and seizure protected by s. 8 of the Charter of Rights and Freedoms. The appellant also sought to exclude his confession, arguing that it was obtained in breach of his s. 10(b) Charter right to counsel and that it was involuntary.

[73] In this case, it is significant that the cell phone was apparently not password protected or otherwise ?locked? to users other than the appellant when it was seized. Furthermore, the police had a reasonable belief that it would contain relevant evidence. The police, in my view, were within the limits of Caslake to examine the contents of the cell phone in a cursory fashion to ascertain if it contained evidence relevant to the alleged crime. If a cursory examination did not reveal any such evidence, then at that point the search incident to arrest should have ceased.

btr1701 (profile) says:


> one has to ask: how hard is it to acquire a
> warrant to search an arrested person’s cell phone?

The answer is, not hard at all. I do this stuff all the time, and I always take the time to get a warrant precisely because it makes the case airtight and I don’t want to have to watch the suspect walk free and/or still be dealing with appellate issues 10 years down the road.

I’m always amazed by these stories of cops that think saving 30 minutes now is worth the endless hours of depositions and testimony later, and risking an overturned conviction and the dirtbag walking free.

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