HACKENSACK, N.J. — As new technology continues to collide with privacy rights, the U.S. Supreme Court is set to hear arguments this month in two cases involving police searches of cellphones that could have a major impact on the privacy of everyone who carries a mobile device.

The cases are being watched closely by the country’s top civil liberties groups, privacy advocates and constitutional scholars, many who’ve joined in with filings in defense of privacy. The high court’s stand will guide how courts across the country will apply constitutional privacy rights and the safeguards against unreasonable searches in the age of smartphones, tablets, phablets, Google Glass and “wearable” computers.

“Technology changes the nature of the game,” said Christopher Slobogin, a law professor at Vanderbilt University and author of “Privacy at Risk: The New Government Surveillance and the Fourth Amendment.”

“The justices would need to rethink what the Fourth Amendment is all about,” he said. The amendment protects against unreasonable searches.

It was discord between courts at opposite ends of the country that landed the issue before the justices. In one case, police arrested Brima Wurie of Boston in 2007 on suspicion of selling drugs, and, after taking him to a police station, they seized two cellphones and searched his call log.

The search of the call log allowed police to determine where Wurie lived, and after obtaining a warrant to search his home, they found drugs, a firearm and ammunition.


Despite Wurie’s objection to the use of evidence obtained from the warrantless search of his phone, he was convicted of drug and weapons charges and sentenced to nearly 22 years in federal prison.

A divided federal appeals court, however, threw out his conviction last year, finding that the search of Wurie’s phone was unconstitutional.

“Warrantless cellphone data searches strike us as a convenient way for the police to obtain information related to a defendant’s crime of arrest – or other, as yet undiscovered crimes – without having to secure a warrant,” the court ruled.

In the second case, David Leon Riley of San Diego was pulled over in August 2009 for driving with an expired registration. Police searched his car and found two handguns, and ballistic evidence showed that the guns had been used in a gang-related shooting three weeks earlier.

Riley was arrested and his smartphone was seized. A warrantless search of the phone revealed pictures of Riley making gang signs and posing in front of a car that was spotted at the shooting.

Riley was convicted of attempted murder, firing at an occupied vehicle and assault with a deadly weapon. An appeals court in California affirmed his conviction, agreeing with prosecutors that the search of Riley’s phone at the time of his arrest was no different than a search of other items found on his person – such as his wallet, address book or pack of cigarettes – none of which requires a warrant.


Riley appealed to the U.S. Supreme Court after California’s highest court declined to hear his case. The U.S. Supreme Court agreed to hear the case earlier this year, and nearly a dozen groups joined in to support him with friend-of-the-court filings, including the American Civil Liberties Union, the National Association of Criminal Defense Lawyers, The Cato Institute, New York University Law School’s Brennan Center for Justice, and an association of dozens of criminal law professors from across the country.

In New Jersey, where prosecutors say they prefer to play it safe with smartphones by getting a warrant before searching through the devices, there do not appear to be any challenges to evidence obtained from cellphones based on constitutional grounds.

“I have no difficulty with getting a warrant and do not believe that it poses a burden to investigations,” said Bergen County Prosecutor John L. Molinelli.

Absent a warrant, detectives search a suspect’s phone only if they have the suspect’s consent, he said.

“It is a search of something where there is an expectation of privacy,” Molinelli said. “We have always applied for a warrant unless we get consent.”

Arthur O’Keefe, who retired in January as Englewood’s police chief, said his department has followed a similar policy for years.


Cellphones are seized when suspects are arrested, but detectives always wait for a warrant before they look through the device for phone numbers, text messages or any other data, he said.

Laws and court rulings over the years have granted police the power to frisk a person at the time of arrest and go through items seized on the suspect, including briefcases, wallets or other belongings in the person’s pockets.

Prosecutors in the Riley and Wurie cases argue that a smartphone is like any other pocket item if it is seized on the suspect’s person. They also argue that cellphones have become popular not just among ordinary citizens but among criminals, and not allowing police to search them would significantly curtail investigations.

“The same features of cellphones that have made them popular among ordinary citizens – their versatility and portability – have also made them pervasive instrumentalities of crime,” the U.S. Justice Department said in one of its filings.

The government also argued that crucial evidence on a cellphone could be erased while police wait for a warrant. It said police should be able to search the phone before the data is deleted remotely from another device through a process known as “remote wiping.”

Privacy and civil liberties advocates disagree. Remote wiping can be prevented by turning off the phone and removing the battery, they say.


Advocates also argue that the amount and extent of information that can be stored in a cellphone is massive compared with what is in a wallet or briefcase.

The advocates point out that the law allows police to search suspects at the time of arrest for two reasons: To make sure suspects are not carrying weapons and to prevent them from destroying evidence.

“Neither of these rationales applies to cellphones,” said Steven Shapiro, legal director of the American Civil Liberties Union.

Considering the vast amount of information that can be found on a person’s smartphone, he continued, allowing police to search the device without a warrant would be like allowing them to rummage through every drawer in the person’s home.

“And that is exactly the kind of search that the Fourth Amendment is designed to prohibit,” Shapiro said.

Slobogin, the professor from Vanderbilt, said the U.S. Supreme Court has often favored the government in Fourth Amendment cases. In cases involving new technology, however, the justices have been likely to rule in favor of privacy, he said.


“I think they realize that technology gives the government a lot more access to information than before,” he said.

Jake Laperruque, a fellow on privacy, surveillance and security at the Washington, D.C.-based Center for Democracy & Technology, said he expects the court’s rulings in Riley and Wurie to be broad enough to apply not just to smartphones but other devices.

He said he hopes the justices will craft a ruling to reflect the philosophy that changing technology does not have to come with limits to citizens’ privacy rights.

“We don’t have to trade away our privacy just to use our smartphones,” he said.

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