Written by Nicole Flatow
By age 23, 30 percent of Americans have been arrested, according to one recent estimate. For Hispanic males, that figure climbs to 44 percent. And for black men, almost 50 percent. By these statistics, none of us can be sure that we are safe from the consequences of an arrest, and one of the most central consequences is an invasion of privacy.
When the cuffs come out, how much privacy are we willing to sacrifice? We already sacrifice a lot. As a rule, the Fourth Amendment to the U.S. Constitution requires police to obtain a warrant before searching a person or his home or possessions. But since at least the 1920s, that requirement has been eliminated in what is known as a “search incident to arrest.” What the rule means is, once a person is arrested, a cop can search anything on that person.
That rule was developed for fear that a person would be carrying weapons that might hurt the officer, or contraband such as drugs that might be destroyed once an individual is let go. When that rule was developed, nobody carried electronics on their person that could tell a cop more information about them than searching their entire home.
Ninety-one percent of Americans now own a cell phone, and 61 percent of those are smartphones, according to a 2013 Pew survey. So when cops arrest you for something, anything, they might be able to search your phone. And with conviction rates as low as 16 percent for some crimes, police have the potential to gather vast swaths of data from mere suspects never convicted of a crime, no matter how minor the offense.
Some courts have already said that’s not ok. Others have said it is. Several of them are imploring the U.S. Supreme Court to give them a clear answer. And the court has agreed to do so, hearing a set of cases Tuesday morning that aim to answer that very question.
Pulled Over For Expired Tags and a Third-Party Tip
In the state case, college student David Riley was pulled over for having expired tags. In the course of the stop, police found two guns in the trunk of Riley’s car and arrested him for carrying concealed and loaded weapons. The arrest empowered the officers to seize Riley’s phone, a touchscreen smartphone with internet and photography capabilities, and to search it twice. In the course of the search, officers went through Riley’s text messages, contacts, photos and videos and found evidence that they believed suggested Riley was a member of a gang and that he was involved in a gang-related shooting. Riley was charged with attempted murder, and when four eyewitnesses could not identify Riley as one of the shooters, prosecutors used circumstantial evidence obtained from his phone to convict him. He was given a significantly longer sentence because of a “gang enhancement.”
In the federal case, an officer who believed he had witnessed a drug transaction got a tip that Brima Wurie had sold cocaine. They arrested him, seizing two cell phones, his keys and cash. They took Wurie to the station and looked at his call log, to find many calls from “my house.” When a phone call came in from that number, they flipped the phone open and were able to use that information to find the home’s address. They went to that address, found a girl who looked like a photo on Wurie’s phone, and used the keys they had seized to open Wurie’s door. At that point they left to get a search warrant, and returned to find evidence of drug distribution that they used to charge him.
In both of these cases, it may be that cops would have been given access to search the phones, anyway, after a judge decided which searches were relevant to the case and what officers were authorized to look for. But that would have made the key difference. That’s because the Founders of the Constitution were very concerned with what is known as “particularized searches.”
A Policy Against Fishing Expeditions
The idea of giving cops the authority to go on a fishing expedition to find whatever they could on potential suspects was expressly rejected when the Founders included the Fourth Amendment in the Bill of Rights. As the Constitutional Accountability Center explains in its brief to the Supreme Court, the sort of “generalized warrants” that authorized that were commonly employed by the British over the colonies. In one famous Boston case that prompted the passage of a law specifically requiring particularized warrants, the lawyer for a merchant subject to general search by police warned that general warrants “place the liberty of every man in the hands of every petty officer.” John Adams later said of Otis’ defense that it “was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”
The amendment that was later drafted stated specifically that, “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.”
This is why officers are expected to get warrants in the vast majority of the cases, and why exceptions to that rule should not threaten to overtake the rule on account of advancements in technology. Those who oppose warrantless cell phone searches have solutions for preventing both the destruction of evidence and the right to privacy. If an officer is concerned that an individual will destroy the phone, she could simply seize it and hold onto it pending a warrant. If an officer is concerned that an individual can do a remote digital “wipe” of a cell phone’s contents, she could turn it off, remove the battery, or use any of a number of techniques for shielding it from radio signals, including putting it in a Faraday cage, while awaiting warrant approval. But the Justice Department is nonetheless arguing that cell phone searches during arrest are a key investigatory technique that needs to be preserved.
Among the data police could extract from your phone are your photos, music and other downloaded items, access to items you keep in the cloud, your browser search history, and contacts list with identifying information, and of course any text messages and emails stored on the phone.
And the court could come up with an answer that allows access to some of this data but not all. A 1976 case ruled that gathering data from a phone company’s call log was not a “search” within the Fourth Amendment and therefore did not require a warrant. This decision has been cited to justify National Security Agency surveillance, and it could mean that the justices allow the cops to look at phone calls, but not other “smarter” data. But even a cell phone’s call log now comes with the identifying information about the caller, meaning it may be time for the high court to reconsider any warrantless cell phone access.
This post originally appeared on ThinkProgress
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