U.S. Supreme Court Will Make Big Decisions on Your Privacy Rights from Police this Year: the Boundaries of Law Enforcement Intrusion

Yesterday’s State of the Union address is still the talk of many today, with many discussing the extent of the executive branch’s power and exactly what “checks and balances” means. However, for many criminal defense practitioners there’s more to be considered in 2014 than what the President or Congress may be doing up in Washington, D.C.: there’s also the actions that will be taken by the highest court in the land this year. Specifically, what the United States Supreme Court will decide in three cases that have come before it, which will impact search and seizure boundaries for all law enforcement officers in the nation.

Major Privacy Rights When You are Stopped by the Police Are Being Decided This Year

These cases are important to citizens and to Texans, specifically, because the High Court is going to decide the legal boundaries on (1) police stopping someone that they have seen doing nothing wrong based upon an “anonymous tip” and (2) police searching through everything on someone’s phone (call logs, saved contents) without a warrant after the person has been arrested.

1. Navarette v. California

Why is Navarette v. California important to people in Texas? If law enforcement arguments win, then anyone can call the local police and claim to see your car weaving or speeding or driving erratically in some way (”I think they’re drunk!) and the police, without any probable cause of their own to think you are violating any law themselves or without seeing you do anything strange, can pull you over and stop you.

Think how much fun this could be for divorcing couples.

From a criminal defense standpoint, allowing these anonymous calls to spark the police to pull a car over puts too much power into an unknown source. Anonymous by definition goes against the due process traditions of this country.

Currently, police officers can pull someone over in an investigative traffic stop if the police officers themselves have a factual basis for reasonably suspecting that the driver of the car is either in the process of committing a crime or is wanted already for alleged criminal conduct (there is an arrest warrant issued for him or her).

It’s going one step further to allow the police to stop you based upon someone who calls a leaves a tip on an anonymous tip line, without the police having any independent suspicions about anything.

In the California case that has brought this issue to the High Court, California police got a call on their 911 line from someone who declined to leave their name but told the 911 operator that he had just been run off the road by a Ford pickup, and he gave the police the license number for the truck. The California police zoomed out and pulled the Ford pickup over based upon this anonymous tip.

Issue to be decided: Whether the Fourth Amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle.

Follow the case online at the Supreme Court’s docket page here: Navarette v. California, 12-9490.

2. Riley v. California and U.S. v. Wurie

Why are these two cases important to the people of Texas? If the government arguments win, then anyone who is arrested with a cell phone can expect law enforcement to surf through every single thing on their phones — the photos from their vacation, the texts from their friends (or kids or parents) or from work, their search histories, and more — as well as finding out who the person’s been calling (which means that the arrest will open up those phone records to reveal identities of third parties who have been calling or communicating with the person who has been arrested).

Criminal defense lawyers are concerned that opening up smart phones to police scrutiny without the need for a search warrant after someone has been arrested ignores how much personal and private information can be found on today’s phones: something that if found on paper would require a warrant where a judge had reviewed the facts to support this intrusion into someone’s privacy and approved it before the police could look at all those documents. Just because a smartphone provides easy and fast access to all this stuff doesn’t mean that the police should be able to get a looksie without the same privacy protections given to that person’s desk drawers and file cabinets.

Consider what is on your cell phone — do you think the police have a right to go through all that private, personal stuff without a warrant confirming their right to do so?

These two cases are being heard jointly by the U.S. Supreme Court because they bring before the court two very similar factual issues: whether the police can search a cell phone without a search warrant after they’ve arrested someone (one case asks about warrantless search of the phone’s contents and another asks about warrantless searches of call logs).

Privacy rights in this country, as they pertain specifically to search and seizure, are being threatened by the reality that technological advancements are making it so very easy to ignore constitutional protections that exist and which are more readily accepted and respected with more traditional sources of information like files, letters, spiral notebooks, log books, etc.

These cases are before the Supreme Court because the police did look at stuff on the cell phones without a warrant and now those defendants are taking that privacy issue, which they are arguing were unconstitutional searches and seizures.

Follow these two cases online at the Supreme Court’s docket pages here: Riley v. California, 13-132 and U.S. v. Wurie, 13-212.

From our new Michael Lowe Digital Library:

Read the amicus curaie brief of the National Association of Criminal Defense Lawyers and National Association of Federal Defenders in Navarette v. California here: