Cell Phone Privacy ?

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The U.S. Supreme Court has agreed to hear arguments on whether police can search an arrested suspect’s cell phone without a warrant.   The high court is taking up two cases, (the cases are Riley v. California, 13-132 and U.S. v. Wurie, 13-212) one from California, and one from Massachusetts arising from criminal prosecutions that used evidence obtained without a warrant. The high court will weigh into how to apply older court precedent, which allows police to search items carried by a defendant at the time of an arrest.  However Cell phones have evolved from devices used exclusively to make calls into gadgets that now contain a treasure trove of personal information about the owner.

The question before the U.S. supreme court justices is whether a search for such information after a defendant is arrested violates the Fourth Amendment of the U.S. Constitution, which bans unreasonable searches. The outcome would determine whether prosecutors in such circumstances could submit such obtained information as evidence in court.  In light of the fact that almost everyone now carries a smartphone, and the judicial, and jurisdictional confusion, contradictory over whether the police can search the digital content of cell phones, it is imperative that the high court resolve the confusion, and settle this issue.

Under current court precedent, police are allowed to search a defendant at the time of an arrest without a warrant, predominately to ensure the defendant is not armed and to secure evidence that could otherwise be destroyed. In the past, it has generally been applied to such items as wallets, address booklets, or notebooks items. In the California case the defendant was convicted of three charges relating to a 2009 incident in San Diego in which shots were fired at an occupied vehicle. Prosecutors were able to link the defendant to the crime due to  photographs on his smartphone that showed him posing in front of a car similar to one seen at the crime scene.  The police obtained the photographs, and videos that showed the defendant  making gang related comments, which was shown to the jury at the trial.

The police searched the phone after pulling over the defendant’s vehicle for having expired tags 20 days after the shooting.  The defendant’s convictions were upheld by a state appeals court in California.

In the Massachusetts case, it was the federal government that appealed after an appeals court threw out two of three drugs and firearms counts on which the defendant had been convicted by a jury. The Boston based 1st U.S. Circuit Court of Appeals said that police could not search the defendant’s phone without a warrant after an arrest for suspected drug dealer, wherein the police used the information that they obtained from the defendant’s cell phone to find the location of drugs, and firearms.

In both cases, the Fourth Amendment of the U.S. Constitution is at the core of the issues.  U.S. supreme court will hear oral arguments in April, and will decide, and settle the judiciary confusion by June of 2014, where they will issue their final ruling on whether warrantless searches of cell phones are permitted, or police will be required to secure a warrant prior to searching a defendant’s cell phone after an arrest.

In the current time, and climate where it seems like our privacy, and the essence of what ensures, and secures our constitutional rights, have diminished in gradual pieces; as we contemplate the balance of security vs. privacy, perhaps the supreme court will confirm, and thereby steer our trust back into the rule of law.

By: Lawrence Levy, ESQ. Senior Counsel









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