Smart Phones and Implications on Privacy Rights in the Fourth Amendment

SmartPhoneApps4Cops-2Have you ever done or been involved in anything legally incriminating with the use of your smart phone? Say you were pulled over for a speeding ticket – would you be comfortable with the police searching your phone – without a warrant – for potentially incriminating evidence despite its being completely irrelevant to the current situation?  The advent of the digital age, with mobile devices such as the flip-phone, and in more recent years, the smart phone, has brought with it a desire for a level of privacy that is consistent with the constitutional rights given to all individuals residing as citizens of the United States of America.  Recently, however, law enforcement authorities seeking to expose wrongdoing, regardless of how serious, have threatened privacy rights with regard to mobile devices.  On April 29th, 2014, the Supreme Court responded to two separate appeals from individuals who, after being convicted for offenses supported by evidence contained in their mobile devices, felt that their fourth amendment rights were violated.  The point of contention, it appears, is whether or not police officers, when conducting investigations for potential crime-related evidence, should require a warrant to search the contents of an individual’s cell phone.


According to the Pew Research Center, as of January 2014, 90 percent of American adults have a cell phone, and 58 percent have a smart phone.  With exposure to mobile devices being considerably high, it is reasonable to expect that the personal and financial information contained on these devices have a higher probability of being exposed to individuals and entities that are not legally entitled to view, or much less, analyze such information.  David Riley and Brima Wurie are two individuals who had their cellphones searched in the course of an arrest; in both cases, searches conducted by the police yielded evidence of much more serious crimes.


The case of Riley v. California takes us back to 2009, when the defendant David Riley, a college student, was pulled over in San Diego for driving with expired tags.  The situation escalated when the officer found out that Riley was driving with a suspended license; he was later arrested when police searched his car, wherein two weapons were found in his possession.  At the station, the officer searched through Riley’s smartphone without a warrant, and obtained evidence of his involvement in an attempted murder, increasing the original seven-year prison sentence to a mandatory sentence of 15 years to life.  The evidence included “photos and videos that implicated (Riley) in gang-related crimes.”


In United States v. Wurie, police officers arrested Brima Wurie on September 7, 2007 on the suspicion that a drug transaction had recently occurred, while police were observing, between him and a man named Fred Wade.   Police later found two 8-balls of cocaine on Wade and proceeded to arrest Wurie for possession and intent to distribute.  Furthermore, when police searched the call log on his flip phone and traced the call back to his home address in Boston, they recovered “215 grams of crack cocaine, a Smith & Wesson .9mm pistol, assorted ammunition, marijuana, and drug paraphernalia.”


In each of the respective cases, the defendants filed motions to suppress evidence acquired through the unwarranted search of their cell phones.  Though at first the trial courts denied their motions to suppress the evidence, both convicts filed appeals.  The California courts eventually sided with police in Riley’s case, whereas, in Boston, the federal appeals court sided with Wurie.  Clearly, though, there is a difference of opinion between justices as to the nature of modern technologies and the rights to privacy as stated in the fourth amendment.


Jeffrey Fisher, a Stanford Law School Professor and Supreme Court Litigator, who represents Riley in this case, holds that “protection should not evaporate more than 200 years after the founding [just] because technology has given Americans the ability to ‘carry that information in their pockets.’”  Fisher emphasizes that digital information is completely different in comparison with personal items such as a billfold (wallet.)  He continues: “digital information … implicates vast amounts of information, not just the photos themselves, but the GPS locational data that’s linked in with it, [and] all kinds of other information that is intrinsically intertwined in smartphones.”  Additionally, Fisher remarks: “it’s not just what can be looked at; it’s how it can be kept… for some crimes, it’s not just that they’re downloading the information … they’re keeping this information in ever-growing databases of every cellphone that they’ve ever seized.”  It is hard to believe that anyone would be comfortable with their information being stored in databases readily accessible to the police.


In response, California’s Solicitor General Edward DuMont defended the right of cops to search phones upon arrest.  He claims: “there is no difference between the police searching the paper pictures in your pocket and the digital photos on your phone.”  Though DuMont insists that such cell phone use is marginal, Justice Elena Kagan replies with the statement that “in fact, most people now do carry their lives on cellphones, and that will only grow every single year as … young people take over the world.”  This is supported by the notion that, previous to the arrival of mobile phones, searches incident to arrest were limited to the constraints of what an individually could physically carry.  The arrival of the smartphone, however, has eliminated that rationale.  To put this into perspective, it is no exaggeration that the smallest-capacity model of iPhone can hold the memory’s equivalent of 16 pickup trucks of paper, as well as thousands of photos or hours of videos.


Each year, about 12 million people are arrested, most for misdemeanors that often don’t end in convictions.  Petty crimes such as jaywalking or littering are some of the most common types of misdemeanors, yet if the courts give police the right to search mobile devices without warrant, this will leave many of those people – who have committed minor offenses – and the information contained on their mobile devices, without the protective provisions of the law.  According to a 1969 Supreme Court ruling, “police are allowed to search a person’s pockets and personal belongings only in order to ‘seize weapons and to prevent the destruction of evidence… in the area in which an arrestee might reach.”  Furthermore, Hanni Fakhoury, an attorney for the Electronic Frontier Foundation, a non-profit organization protecting the digital rights of individuals, explains: “the broad scope of information contained on a phone makes searching them fundamentally more invasive.”  Fakhoury adds: “A smartphone, such as the Samsung model Riley was carrying, contains contacts, text messages, emails, photos and videos—in many cases the entire contents of a person’s digital life … if a person uses an email client, their mail is ‘sitting on their actual phone.’”  Particularly sensitive information in emails may include not only personal correspondence, but also information about bank accounts and online purchases.  As communication in our society moves continually towards the “recorded world” of texts and emails, there seems to be more reason to worry that police will have the “unprecedented ability to surveil citizens’ private conversations.


Justice Antonin Scalia, an associate justice of the Supreme Court of the United States, wrote dissents on two separate cases related to the fourth amendment, similar to that of Riley and Wurie, including both cases of Maryland v. King and Navarette v. California.   In the King case, he disagreed with the court’s conclusion that the police may lawfully take a cheek swab of someone’s DNA after he or she has been arrested for a serious offense.  Additionally, with the Navarette case, Scalia disagreed with the court’s conclusion that the police could lawfully stop a car after a woman anonymously called 911 and reported that the car had driven her off the road.  He wrote that such stops were not the constitutional framers’ concept of a “people secure from unreasonable searches and seizures.”  Scalia stands in contrast with other associate justices, stating: “suspicionless searches are never allowed if their principal end is ordinary crime-solving … that is why police should not be able to search the modern day equivalent of one’s ‘papers and effects’ – the contents of one’s cell phone – without a warrant”


In the event of a close case between justices, the result of the final disposition often comes down to Justice Anthony Kennedy.  In his arguments, Kennedy was interested in limiting search possibilities to serious crimes; yet, this would not be enough considering that “the crime whose seriousness would be measured would not be the one for which a person was convicted, but one for which he was merely suspected.”  It would be inappropriate to limit such searches to so-called “serious” crimes, as this would be beating around the bush.  We would be ignoring the true, legitimate issue, that is, it is not an exaggeration that many people carry their whole lives in our phones, and as such, police officers should be required to obtain warrants before legally searching them.


There exists a “final technological twist” of preserving evidence from destruction, which would allow a police officer to overlook the requirement to obtain warrants to search your mobile device for incriminating evidence.  It just so happens that smartphones, in particular, are especially susceptible to this risk, as many now include a feature that enables the owner to remotely wipe a phone and all of its data.  Despite these features, though, there exists another to preserve the phone and all of its data.  This includes placing the phone on airplane mode to avoid the wiping problem, as suggested by Justice Sonia Sotomayor.


The fourth amendment exists to protect the privacy rights of individuals living in the United States of America.  However, government and law enforcement officials may feel as though convicting suspected wrongdoers by searching through evidence found on their mobile devices is justified due to the potential for the amount of serious crimes that could be solved.  A compromise, however, in our rights as individuals in the digital age may very well prove to be a shadow of things to come, to which we must all be wary.


2 Comments to “Smart Phones and Implications on Privacy Rights in the Fourth Amendment”

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