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June 25, 2014
Notable SCOTUS consensus that Fourth Amendment requires a warrant for cell phone searches
The Supreme Court handed down this morning its last big criminal justice decisions of this Term with a near unanimous ruling in Riley v. California and US v. Wurie. The decision for the Court (available here) was authored by the Chief Justice, and here is how it begins and some of its essential parts:
These two cases raise a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested....
[A] balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrantless searches at issue here.
But while Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones....
We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search....
We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost....
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,” Boyd, supra, at 630. 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 protection for which the Founders fought. 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.
Regular readers will not be surprised to hear that there was one Justice who felt compelled to write a separate concurrence to express some misgivings about the majority's forceful pro-defendant ruling here. Usefully, both the Chief's opinion and the one concurring opinion likely provides lots of interesting discussion of Fourth Amendment interests and applications that should keep commentators buzzing and blogging (and tweeting) about modern privacy law for some time.
June 25, 2014 at 10:43 AM | Permalink
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Comments
Justice Alito's argument that legislative regulations can provide a useful approach here matches that of Prof. Kerr, who has written a lot of these issues.
Posted by: Joe | Jun 25, 2014 11:19:21 AM
In pratice, it is not very difficult to have PC for a cell-phone search after arrest.
Posted by: AUSA12 | Jun 25, 2014 11:27:59 AM
Congratulations to the defense attorneys that litigated these cases zealously.
A great victory for the privacy of us all.
Posted by: Michael R. Levine | Jun 25, 2014 11:39:50 AM
The case bring to mind the following observations:
“There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” Arizona v. Hicks, 480 U.S. 321, 329 (1987) (Scalia, J.).
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
Posted by: Michael R. Levine | Jun 25, 2014 11:49:09 AM
Interesting that today's decision seems to breathe at least some life into Boyd (1886) and its animating concern for the protection of personal privacy. During the Rehnquist era, the Court, per opinions of the Chief Justice and Justice O'Connor, had treated Boyd as road kill. The Court here recognizes that there IS such a thing as a "warrant requirement", albeit riddled with myriad exceptions, and that warrantless searches are unconstitutional unless one of the exceptions applies. Fourth Amendment privacy still lives!
Posted by: Stan Adelman | Jun 25, 2014 12:07:19 PM
Mr. Adelman:
Yes indeed, the quotation from Boyd should be emblazoned on the walls of every lawyer, judge, and citizen:
“It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” Boyd v. United States, 116 U.S. 616, 635 (1886).
Posted by: Michael R. Levine | Jun 25, 2014 12:32:35 PM
Yes. Yes... The thugs need to have some rules and protocal. My gosh, they can track your whereabouts with your cell phone anytime. They need warrent to access it... Yes.
Posted by: Midwest Guy | Jun 25, 2014 2:22:47 PM
I'm with Midwestguy. While I won't dispute the symbolic nature of the victory I think in practice it means very little. The biggest threat to privacy today is not the one-to-one violation that occurs during a search by the one-to-many violation that goes one under the rubric of surveillance. So long as this surveillance exists the government can engage in sophisticated correlation attacks that makes the data on the phone itself irrelevant. Most cases are not won with smoking guns--they are won on circumstantial evidence. So long as the government can collect the circumstances the evidence will find its way, and no smoking gun is necessary.
Posted by: Daniel | Jun 25, 2014 2:38:39 PM
Gentlemen:
This is currently at best a hollow victory until further steps are taken. LE can know not only who you call and text, but the contents of any communication through the use of devices such as Stingray, etc., or archive the information either through the provider or store it themselves for later retrieval and review without the actual phone or an actual warrant.
When specific warrants are also required for this general type of surveillance and/or data storage, and I don't mean a federal rubber stamping judge, I might start believing in the Bill of Rights which we've been mislead to believe actually exists and is followed.
Posted by: albeed | Jun 25, 2014 8:51:08 PM
Well, there's a lot of other things on cell phones, such as contact lists, pictures, etc. So who you call and text is only a small part of it (historic cell site data is another big one they can probably get). Using a stingray to listen to your phone conversations would likely require probable cause and fall under Title III, requiring exhaustion, particularity, screening to ensure only pertinent calls are listened to, etc. (see Season One of The Wire for a better indication of the requirements), so that's categorically different.
This is a big case for those who believe that the police should be limited in their ability to use minor crimes as a justification to intrude into your entire life with the hopes of finding other crimes.
Posted by: Erik M | Jun 25, 2014 9:47:15 PM
Eric.
You are correct--the ruling does make it harder for police to use minor crimes to intrude into one's life in hopes of finding other crimes. The point that albeed and myself are making is that the particular police MO you describe is fading into obsolescence. Many police departments are moving to the surveillance model. The assumption behind the surveillance model is that someone is committing crimes the police just need to figure out who it is and using computers to sift through various databases of cell phone records, license plate numbers, and so on is more effective use of scarce resources than than trying to "sell up" from a minor crime to a major crime via a cell phone search. That is to say rather than move from bottom (minor infraction) to top (bigger infraction) the police want to move from top (big data) to bottom (small data).
This truth is what is at the core of the whole "mosaic theory" of the 4A, which in the bigger picture is about law enforcement's desire to move from a innocent until proven guilty standard to a guilty until proven innocent standard. So the ruling in Riley is the equivalent to what my mother would have called, "Close the windows they are coming through the doors!" Until SCOTUS closes both the doors and the windows nothing significant will be achieved.
Posted by: Daniel | Jun 26, 2014 12:25:58 AM
Daniel:
As a late and not so great commentor here used to say, Bingo!
Posted by: albeed | Jun 26, 2014 10:01:35 AM
"Significant" things are achieved in installments. This opinion helps there and will help protect privacy in various ways. The "yawn" comments are overblown to me. We can belittle 4A law in general given the realities of police behavior. It's a matter of degree.
Posted by: Joe | Jun 26, 2014 11:52:15 AM
Anyone here know what is the current status of the case styled ACLU v. Clapper?
Posted by: Liberty1st | Jun 27, 2014 2:58:03 PM
