Police and Your Phone: The Justice Department Pushes Supreme Court To Okay Police Searching Your Phone Without a Search Warrant. Will Your Smartphone Be Private Anymore?

We’ve posted about police in Texas circumventing search warrants to get cell phone tower information by getting special court orders from Texas judges and how many are concerned that this is a constitutional violation of our rights to privacy. (The Fifth Circuit Court of Appeals, which presides over Texas in federal appellate matters, has ruled that it is NOT. Read that case here.)

However, getting a bunch of information off a cell phone tower is nothing compared to what the federal government wants to grab now — Eric Holder and the Justice Department are pushing for the Supreme Court to find that smartphones and cell phones can be searched by police without a search warrant.

This is a serious constitutional challenge to the Fourth Amendment’s privacy protections and everyone who owns a cell phone or smartphone needs to be aware of this DOJ campaign to get ready access to everything on someone’s phone — photos, phone numbers, mp3 files, the works.

The Smartphone Searches in the David Riley Case: an Example of What’s Happening Here

Four years ago tomorrow (on August 22, 2009), a college student named David Riley was pulled over by police because his Lexus had expired license tags. It was early in the morning, presumably sunny and warm, since this happened in San Diego, California.

Tags, that’s it.

Riley’s situation got worse when the officer checked Riley’s driver’s license and found it had been suspended. Riley is now driving a car with expired tags with a suspended license. The police decide to take (impound) his car.

When a car is going to be taken to an impound lot, the law requires that an inventory be made of all the property that is inside the vehicle. When the two policemen who stopped Riley started to inventory the contents, they discovered two guns hidden under the hood of the Lexus.

Now, Riley is arrested. He’s charged with carrying concealed weapons.

The two police officers take Riley’s cell phone as they are arresting him (presumably out of his pocket). He’s got a smartphone – an IPhone competitor made by Samsung. At the time of the arrest, the officers surf through the smartphone.

Riley’s Phone: Two Warrantless Searches

During that first warrantless search of Riley’s smartphone, one of the officers sees abbreviations that lead him to believe that Riley may be associated with a local gang (the Bloods). Once they’ve all gone down to the station for Riley to be booked, there’s another warrantless search of the phone by the police: this time, the police go through “lots of stuff” admittedly “looking for evidence.”

Photos on the phone then lead the police to connect Riley to a pending investigation of a local shooting and ballistics testing of the guns found under the Lexus’ hood connect them to the shooting. Riley and two others were charged with attempted murder, shooting at a vehicle, and assault with a firearm.

Riley was convicted. His case is now before the United States Supreme Court with this single question being presented to the High Court:

Whether or under what circumstances the Fourth Amendment permits police officers to conduct a warrantless search of the digital contents of an individual’s cell phone seized from the person at the time of arrest.

August 2013: Justice Department Pushes For Freedom to Search Phones Without a Warrant in Wurie Case

Apparently, Riley’s taking too long. This month, the Attorney General has asked the United States Supreme Court to overturn the First Circuit Court of Appeals’ reasoning and decision in an 2013 appeal before the High Court, United States v. Wurie. (The First Circuit ruled that police need to have a search warrant before they go surfing through smartphones discovered during an arrest.)

In Wurie, two Boston police officers staking out a convenience store parking lot watched what they thought was a drug sale out of parked car driven by Brima Wurie. When they investigated, they found two bags of crack cocaine in the pocket of the buyer who quickly pointed the finger at Wurie as being the seller; Wurie was arrested.

At the police station, after Wurie was Mirandized, two cell phones were inventoried as his property. By a warrantless search of his phones, the police discovered an address labeled “My House” on the phone, which they visited and then – after getting a search warrant – searched the place, finding lots of drugs (crack cocaine, marijuana) as well as cash and guns.

Here’s what the First Circuit Court of Appeals decided in Mr. Wurie’s case:

This case requires us to decide whether the police, after seizing a cell phone from an individual’s person as part of his lawful arrest, can search the phone’s data without a warrant. We conclude that such a search exceeds the boundaries of the Fourth Amendment search-incident-to-arrest exception. Because the government has not argued that the search here was justified by exigent circumstances or any other exception to the warrant requirement, we reverse the denial of defendant-appellant Brima Wurie’s motion to suppress, vacate his conviction, and remand his case to the district court.

The federal government appealed this ruling. Read their Petition for Writ of Certiorari here.

Federal Government Argues That Smartphones Have No Expectation of Privacy and Police Are Free to Surf Your Phone

Holder and his attorneys are telling the U.S. Supreme Court that its a longstanding tradition, a “bright-line rule,” for police to search all the stuff that they find on someone’s person when that person is arrested. Wallet? They look through it. Handwritten notes in a pocket? They read them. The federal government is arguing that smartphones are no different, and the Justice Department is pushing (and pushing hard, from an appellate perspective) to get the highest court in the land to agree with them.

If this happens, then your smartphone with all its information (ALL ITS INFORMATION, think about that) is open to be read and reviewed (and used against you) by the police.

Here is what the Fourth Amendment to the United States Constitution provides – do you think that your smartphone is protected?

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.

Does this protect your phone?  In answering that question, consider this from the ACLU, a list of things that can be found by police on a smartphone, which comes from a real federal case where this information was obtained by federal agents without a search warrant – from a single IPhone:

1. call activity — everyone the person called, and everyone who called them (and how long each chat took);
2. phone book directory information — every number he looked up (pizza joints, parents, other people, whoever);
3. stored voice mails and text messages — that’s right: the agents could listen to all the phone’s voice mails and read all the texts;
4. photos and videos — they could watch all the stored videos and check out every single photo stored on the phone;
5. apps — they could skip through all the apps stored on the phone and gather more personal information there;
6. eight different passwords — they could grab all the person’s passwords; and
7. they could track where the person had traveled through 659 geolocation points, including 227 cell towers and 403 WiFi networks with which the cell phone had previously connected.

To review these two Supreme Court case dockets, go here: Wurie (docket 13-212) and Riley (13-132).

Important Information To Know If You Are Being Investigated for a Crime From Michael Lowe

Knowing your legal rights when you have reason to believe that you are being investigated by law enforcement is so important that we have an online video here where you can watch Board Certified Texas Criminal Defense Attorney Michael Lowe discuss pre-arrest criminal investigations in Texas and the legal rights of those being investigated for possible arrest for a crime.

Watch that video or read the site discussion, where you will learn important information including:

• Why You Should Not Talk to the Detective Without Your Lawyer Being Present. 
• Why Not to Take a Lie Detector Tests – Don’t Take a Polygraph, Even if They Ask for One. 
•  Traps in Social Chat – Facebook, Twitter, Email and Phone Calls.
• Empty Promises from Law Enforcement and Police Detective’s Promises to Try and Get Information From You (and More).