Can the Police Seize Your Cellphone?

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Can the Police Seize Your Cellphone?

Think about your smartphone for a minute. Imagine all of the information about your life that’s available on that one small device.

Now imagine the police having access to all of that information – without a warrant. It’s a scary thought, considering how intertwined our private lives and our phones have become.

And on Tuesday, the Supreme Court heard oral arguments in a case that’ll determine exactly how much protection the Fourth Amendment provides for smartphones.

More specifically, the Court is trying to decide whether police must obtain a warrant in order to search a cellphone that belongs to a person under arrest.

Not surprisingly, the chance that the Supreme Court could strip privacy rights from Americans has people wary . . .  especially since privacy rights have been a hot topic for nearly a year (following Edward Snowden’s NSA whistleblowing).

On top of that, cellphone privacy is a very touchy issue. For the vast majority of us, our phones are intrinsically tied to our everyday lives. In fact, according to a January Pew Research Center survey, more than 90% of Americans own or use a cellphone, and 58% use a smartphone. That makes cellphones the most quickly adopted technology in history, according to CNN.

And it makes the Supreme Court’s eventual decision extremely far-reaching.

A Complicated Issue

The question of whether officers should have warrantless access to possibly incriminating digital evidence has reached the Supreme Court largely because of two cases – United States v. Wurie and Riley v. California.

In both, a suspect was arrested, his phone was searched and the information discovered on the phone was used to press additional charges. (In one case, the evidence from the phone was thrown out, and the conviction was overturned.)

But according to the Fourth Amendment, people have the right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. Based on that, alone, it seems like an open-and-shut case. The Supreme Court should make warrants a prerequisite for cellphone searches.

However, the question of how phones are different from wallets, purses, diaries, briefcases and other personal belongings – which, based on a previous court ruling, can all be searched following an arrest – is tough to spell out. Should only a portion of cellphone data be open to a search? And if so, how would the remaining information be protected from an unreasonable search? On top of that, the judges are considering that their ruling could give (or take away) similar legal protections for future digital devices.

For their part, Riley and Wurie’s lawyers are adamant that phones should be protected. You see, the courts have previously allowed police to search the possessions of people that they arrest in order to assure officer safety and prevent destruction of evidence.

But, as Riley’s lawyer, Jeffrey Fisher, stated, “The digital contents of a smartphone are categorically incapable of threatening officer safety. And once police have seized and secured a smartphone, there is no risk that the arrestee might destroy or alter its digital contents.”

Frankly, I couldn’t agree more. Once a cellphone is seized, it poses a threat to no one. To use the words the Founding Fathers chose when penning the Fourth Amendment, searching a person’s phone at that point is clearly “unreasonable.”

Sadly, the Obama administration is pushing in just the opposite direction. The president’s Justice Department is arguing that law enforcement needs access to phone data to do its job. But at what cost? Is a small advantage for law enforcement worth a huge loss of personal privacy?

That’s the question the Supreme Court will have until June to answer. Until then, we can only hope that it chooses to uphold our right to cellphone privacy.

In Pursuit of the Truth,

Christopher Eutaw

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