Friday, June 27, 2014

Fourth Amendment Protects Your Cell Phone

“These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” – Chief Justice Roberts.

1789: introduced by James Madison: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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.”

2014: Madison’s Fourth Amendment to the Constitution has been brought into the digital age by the United States Supreme Court.

Stemming from two separate criminal cases, the nation’s highest court unanimously ruled that police must almost always get a search warrant to look at your cell phone data after your arrest.

I say “almost always” because the High Court, as it often does, gave police an exception. For instance, if they believe your cell phone will lead to another suspect getting ready to detonate a bomb, they can search it without a warrant; or, if searching a cell phone will save a kidnapped child, it’s all right as well.

But, lacking such exigent circumstances, police must obtain a search warrant based on probable cause to look at smart phone information. And, there’s obviously plenty of it.

In fact it is this vast storage capacity of a smart phone that is at the heart of why Supreme Court Chief Justice John Roberts wrote the opinion, requiring a warrant, and why all of his colleagues agreed – no easy achievement in this era of seriously split 5-4 decisions.

The Fourth Amendment guarantees that without a search warrant cops cannot waltz into your home and rummage room to room for evidence of a crime. As Justice Roberts reasons it, accessing the vast amount of information on your iPhone, such as photos, videos, private e-mails and Web downloads – even a complete digital record of your geographical movement and who you have talked to in the past 24 hours – is analogous to searching your whole house.

He goes even further: “A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form may sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.”

In a salient paragraph, the Justice Roberts provides solid “examples” of why smart phone information is protected: “Mobile applications software on a cell phone, or ‘apps’ offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying and selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase ‘there’s an app for that’ is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.”

For historical perspective the opinion returns to a time when there weren’t any ‘apps.’ It notes that in colonial times “writs of assistance” allowing British officers to conduct surprise home searches was a “driving force behind the Revolution itself.”

Wrote Justice Roberts: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protections for which the Founders fought.”

I think the ruling is spot on.

It’s accepted that the Fourth Amendment allows a police officer to search a person he arrests for weapons or to prevent destruction of evidence. For instance, a cop finding a pack of cigarettes on a suspect can open it to make sure it doesn’t contain a razor blade. Today, an officer is more likely to find a cell phone than a pack of smokes in the guy’s pocket. Today 90 percent of American adults who own a smart phone keep on their person a digital record of nearly every aspect of their lives. That is why this updating of the Fourth Amendment is important, timely and extremely relevant.

Now don’t think this historic decision means police are barred from getting incriminating evidence from your cell phone if you’re arrested. As the court’s opinion makes clear: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

The cops can still arrest you, impound your pretty smart phone, protect it from anyone trying to wirelessly erase information on it by putting it in a tinfoil bag, and then ask a judge for a search warrant based on probable cause. Police can get a search warrant in 15 minutes by e-mailing a judge – perhaps even before they get you to the jailhouse for booking.

And, if any of you are wondering. . . .

It will be a nutty judge indeed who doesn’t think this ruling also applies to iPads, notebooks and laptops, really any kind of portable information storage device you have with you when arrested.

I have one misgiving about this precedent-setting ruling.

In one of the criminal cases that led to this decision, a gangbanger was convicted of attempted murder in San Diego largely because of information police found in a warrantless search of the cell phone, which was taken from his pocket during the arrest. That case now has to be litigated all over, very likely without key evidence from the cell phone. It is possible this thug, who got a 15-year prison term, will go free or get a reduced sentence because of this ruling.

R.D. Byron-Smith is published by Pilar Publishing of California. His books include, Dinner With A Killer, Epitaphs, Image of Evil, Back In Saigon, The Heart Never Sleeps, Murder Under London Bridge, The Collector, Killing Socrates and 7 Stories of Flash Fiction. His books are available at Web booksellers, including Amazon and Barnes & Noble.

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