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'Get a warrant' to search cellphones, justices say

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In an emphatic defense of privacy in the digital age, a unanimous Supreme Court of the United States ruled Wednesday that police generally may not search the cellphones of people they arrest without first getting search warrants.

Cellphones are unlike anything else police may find on someone they arrest, Chief Justice John Roberts wrote for the court. They are "not just another technological convenience," he said, but ubiquitous, increasingly powerful computers that contain vast quantities of personal, sensitive information.

"With all they contain and all they may reveal, they hold for many Americans the privacies of life," Roberts declared. So the message to police about what they should do before rummaging through a cellphone's contents following an arrest is simple: "Get a warrant."

The chief justice acknowledged that barring searches would affect law enforcement, but he said: "Privacy comes at a cost."

By ruling as it did, the court chose not to extend earlier decisions from the 1970s— when cellphone technology was not yet available — that allow police to empty a suspect's pockets and examine whatever they find to ensure officers' safety and prevent the destruction of evidence.

The Obama administration and the state of California, defending cellphone searches, said the phones should have no greater protection from a search than anything else police find. But the defendants in the current cases, backed by civil libertarians, librarians and news media groups, argued that cellphones, especially smartphones, can store troves of sensitive personal information.

"By recognizing that the digital revolution has transformed our expectations of privacy, today's decision is itself revolutionary and will help to protect the privacy rights of all Americans," said American Civil Liberties Union legal director Steven Shapiro.

Under the Constitution's Fourth Amendment, police generally need a warrant before they can conduct a search. The warrant itself must be based on "probable cause," evidence that a crime has been committed.

In the cases decided Wednesday, one defendant carried a smartphone, while the other carried an older flip phone. The police looked through both without first getting search warrants.

Roberts said there's no comparison between cellphones and packages of cigarettes and other items that were at issue in the earlier cases.

A ride on horseback and a flight to the moon both "are ways of getting from point A to point B, but little else justifies lumping them together," he said.

Authorities concerned about the destruction of evidence can take steps to prevent the remote erasure of a phone's contents or the activation of encryption, Roberts said. The police still may seize the cellphone and turn it off or remove its battery. If they think that turning it off could trigger encryption when the phone is turned back on, police can leave the phone on and place it in a special Faraday bag that isolates the phone from radio waves, he said.

One exception to the warrant requirement left open by the decision is a case in which officers reasonably fear for their safety or the lives of others.

Justice Samuel Alito joined in the judgment, but he wrote separately to say he would prefer that elected lawmakers, not judges, decide current matters of privacy protection. Elected officials "are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future," Alito said.

The two cases arose after arrests in San Diego and Boston.

In San Diego, police found indications of gang membership when they looked through defendant David Leon Riley's Samsung smartphone. Prosecutors used video and photographs found on the smartphone to persuade a jury to convict Riley of attempted murder and other charges. California courts rejected Riley's efforts to throw out the evidence and upheld the convictions.

The court ordered the California Supreme Court to take a new look at Riley's case.

In Boston, a federal appeals court ruled that police must have a warrant before searching arrestees' cellphones.

Police arrested Brima Wurie on suspicion of selling crack cocaine, checked the call log on his flip phone and used that information to determine where he lived. When they searched Wurie's home and had a warrant, they found crack, marijuana, a gun and ammunition. The evidence was enough to produce a conviction and a prison term of more than 20 years.

The appeals court ruled for Wurie, but left in place a drug conviction for selling cocaine near a school that did not depend on the tainted evidence. That conviction also carried a 20-year sentence. The administration appealed the court ruling because it wanted to preserve the option of warrantless searches following arrest.

The justices upheld that ruling.

The decision will protect cellphones from warrantless searches going forward, but it may not be of much help to defendants in pending cases, or those whose convictions are final, said Gerry Morris of Austin, Texas, a vice president of the National Association of Criminal Defense Lawyers.

Morris said that courts could allow evidence to be used from police searches of cellphones that were done in "good faith" and relied on the law as it stood when the searches were conducted.

What about other countries?

Canada's Supreme Court ruled last year, much as the U.S. justices did, that officers need a specific warrant to search a computer or a cellphone because the devices "give police access to an almost unlimited universe of information."

In Britain, however, warrantless searches of cellphones and other electronic devices are routine; London police stations are even equipped with special devices to suck data from the phones of arrestees as they're booked.

Wednesday's cases are Riley v. California, 13-132, and U.S. v. Wurie, 13-212.

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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