In my previous post, I discussed two cases soon to be heard by the U.S. Supreme Court regarding the 4th Amendment right addressing illegal search and seizure by law enforcement of cell phones and smart phones. My position was, and still is, those devices post no immediate threat to law enforcement personnel while the device is in their possession nor is there an exigent circumstance allowing for a warrantless search of the device.
Recently, a Federal Judge in New York State opined the same sentiment in the decision of USA v. Alvarez. In that case, boarder patrol arrested two women for aiding a man crossing into the US at the Canadian boarder. Prior to the actual arrest, Boarder Patrol confiscated the women’s cell phones and thereafter downloaded information from those cell phones without first obtaining a warrant. Notably, confiscated from the women was a GPS device, as well.
The Judge, in throwing out the evidence obtained from the cell phones, noted in his decision that the Boarder Patrol agents’ actions amounted to a search that was not justified by any exigent circumstance and not necessary to protect the Boarder Patrol officers safety. The judge went on to clarify his position by adding that, although the Second Circuit has not yet ruled on questions of warrantless searches of cell phones, the Judge equated such search to searches of computer hard drives. Computer hard drive searches, short of exigent circumstances, require a search warrant due to the plethora of private information contained therein and the expectation of privacy of that information.
I mentioned the GPS device earlier in order to highlight the distinction between electronic devices, that the Judge in the Alvarez case pointed out, to that I believe the Supreme Court will also draw in its final opinion. The Judge in Alvarez allowed the information the Boarder Patrol agents obtained from the GPS device, without a search warrant, concluding a GPS device is akin to a paper map. This is important because a paper map (and therefore a GPS device) does not contain information rising to the level of an expectation of privacy that a computer (or a cell phone) has. Since a paper map, laying in plain site does not require a search warrant before looking at the map, even if highlighted routes or marked addresses are on the map, then looking through a GPS device does not require a search warrant either.
I believe the U.S. Supreme Court will use similar logic when it renders an opinion in the cases pending before it. I believe in its opinion we will see language incorporating the principles of "plain view” doctrine and "exigent circumstances” doctrine competing with the expectation of privacy doctrine already established requiring search warrants for homes and personal computers.
My advise to clients, until the Supreme Court renders a decision and us attorneys have some guidance, is not to give consent to government officials if they want to "look through” your smart phone. Regardless whether or not you have anything to hide, the information on your smart phone is private unless you make it public. Therefore, if police want to view the information contained therein, they must obtain a search warrant first, unless you forfeit that right by giving consent.
Warrantless police search of cell-phone content
The U.S. Supreme Court will hear two cases of significant Fourth Amendment rights. The Court will hear Riley v. California and U.S. v. Wurie, both cases dealing with the Fourth Amendment right against unreasonable searches and seizures.
Both cases deal with the suspects’ cell phones’ content, accessed without a search warrant after the suspects’ arrests. In both cases, the police confiscated the cell phones as part of an "inventory” search after arrest. In each case, a search of the cell phone content occurred, as part of the "inventory” search, revealing incriminating evidence.
In the Riley case, the suspect was pulled over for a traffic stop and the police impounded his car when they learned he was driving with a suspended license (here in New York that is a misdemeanor) and then conducted the inventory search of the car. The inventory search is common and any incriminating evidence can be used in other criminal matters or to bring other charges. The police found weapons in the car, which they arrested him for, and that is when his smartphone was confiscated. On the smartphone the police discovered evidence, without a search warrant, of Mr. Riley’s involvement in a shooting, which he was eventually convicted for.
In the Wurie case, the police arrested the suspect after a drug deal and his flip phone was confiscated. The police saw multiple calls from one location noted as "my house.” At that point, the police searched the phone without a warrant, obtained the actual telephone number for "my house,” performed a reverse directory search for the address associated with the telephone number of "my house” and secured a search warrant for the address. Needless to say several hundred grams of crack cocaine were found at the home.
Here is what the Supreme Court is going to consider. An inventory search is allowed and Constitutional. However, is the content stored in a cell phone protected by the Fourth Amendment, requiring the police to obtain a search warrant prior to digging into the digital information contained within the cellphone.
My position is that the cellphone does not pose an immediate threat of harm or potential destruction of evidence by the suspect, while in the custody of the police. Therefore, the police should be required to present to a judge compelling arguments for a search warrant, prior to going through the cellphones digital content, that evidence of a crime is stored on the device.