Cellphone Search Scrutiny Soon

The Fourth Amendment of the Constitution protects “persons, houses, papers, and effects” from unreasonable search or seizure. While the amendment’s protections may seem straightforward, Americans will not know until this summer whether information stored on their cell phones counts as a paper or effect for the purposes of the amendment’s protection against searches. The Supreme Court announced on January 17 that it would hear two cases on the issue this spring.
The first case, Riley v. California, the defendant Riley was convicted by jury of shooting at an occupied vehicle and of attempted murder. The defendant appealed on the grounds that police gathered evidence against him as a result of a warrantless search of the defendant’s cell phone. The defendant believes that the use of that evidence at trial violated the his rights against unreasonable search and seizure. The police’s examination of the defendant’s contact list revealed gang identifiers before some of the names, and photos on the phone exhibited the defendant flashing gang signs.

The defendant in this case also sought to suppress the evidence gathered from the search of his phone, which he considered a violation of his Fourth Amendment rights. The 1st Circuit Court of Appeals held for the defendant.

In the second case, United States v. Wurie, Boston police arrested the defendant Wurie on suspicion of distribution of crack cocaine. The officers took his cell phone from him, and received several incoming calls to the phone from a “my house” contact. The police tracked the number associated with the contact, and received a search warrant for the address. At that location, police discovered 215 grams of crack cocaine and a gun. The defendant in this case also sought to suppress the evidence gathered from the search of his phone, which he considered a violation of his Fourth Amendment rights. The 1st Circuit Court of Appeals held for the defendant.
Currently, the Circuit Courts are split on the issue of Fourth Amendment cell phone protections, according to law Professor Jeffery L. Fisher. “At least six courts hold that the Fourth Amendment permits such searches, while at least three others hold that it does not.”
Oral argument for the cell phone search cases will occur in April, with the Supreme Court issuing a decision by the end of June. Of course, this is the same Court which uses an in-office courier system rather than email, according to Justice Elena Kagan. “The justices are not necessarily the most technologically sophisticated people,” Kagan told reporters in August 2013. Whether that technological disconnect will have an impact on the justices’ decision in the cell phone search cases remains to be seen.
The justices have historically been open to exploring new or unfamiliar technologies when deciding cases. For example, when hearing arguments for a California ban on violent video games, several justices gave the games a try. Interestingly, the Court ruled 7-2 in striking down the ban, though it is not clear that the gaming session had any significant impact on the outcome.
This is not to suggest that the justices do not use or are unfamiliar with cell phones; surely the justices realize that the vast majority (91%) of American adults own a cell phone. However, the justices might not understand to what extent people have private and personal information on those phones. Think of the most private thing on your cell phone right now – should the police be required to have a warrant in order to access that information? America will learn the answer this summer.