Administration Keeps Chipping Away At The Fourth Amendment


Asks Supreme Court to allow warrantless cell phone searches.

techdirt.com
August 20, 2013

colorphoneConsidering 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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