Police searching cell-phones without a warrant

[albionmoonlight]

I know that most people here only follow the highlights of the Supreme Court cases.

This one seems to cross the line into general interest: The Court today (9-0) held that the police must obtain a warrant to search a cell-phone's contents, even if you have the phone on you when you are arrested.

This is important because the general rule is that the police can, without a warrant, search anything on you when you are arrested. The government had hoped to extend that rule to cell phone searches. The Court did not go along.

http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

[Kodos]

Way to stick it to the Man, Supreme Court!

[Chief Rum]

I know that most people here only follow the highlights of the Supreme Court cases.

This one seems to cross the line into general interest: The Court today (9-0) held that the police must obtain a warrant to search a cell-phone's contents, even if you have the phone on you when you are arrested.

This is important because the general rule is that the police can, without a warrant, search anything on you when you are arrested. The government had hoped to extend that rule to cell phone searches. The Court did not go along.

http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

I realize this should be a slam dunk in any case, but I find it particularly pleasing that it was a unanimous decision by the court.

[panerd]

Yes I am quite pleased with 9-0. Seems like a no brainer but so do a lot of 5-4 decisions (or 9-0 the other way :) )

[flere-imsaho]

Kind of surprised (pleasantly) to see this was a 9-0. I guess there's a limit to how far even Scalia, Thomas and Alito will go.

[molson]

Scalia is a pretty huge 4th Amendment guy. Edit: It's not like the legislature where everyone on one team has to have the same opinion on everything and everyone on the other team has to have a different opinion on everything. Thank god. And this term, more than 60% of opinions have been unanimous. Which is higher than previous terms where the court was starting to get more legislature-like. Roberts might deserve some credit for that, or maybe they're dodging more politically charged cases.

[panerd]

Scalia is a pretty huge 4th Amendment guy. Edit: It's not like the legislature where everyone on one team has to have the same opinion on everything and everyone on the other team has to have a different opinion on everything. Thank god. And this term, more than 60% of opinions have been unanimous.

Agree about the legislature... it does still say a lot that we are praising a conservative judge because he is a big supporter of the Constitution.

[molson]

Agree about the legislature... it does still say a lot that we are praising a conservative judge because he is a big supporter of the Constitution.

That's where the terminology gets tricky. Conservative doesn't mean quite the same thing in an appellate court as it does in the legislature. And it gets more confusing trying to tie those terms, and the party platforms, with any particular opinion on the constitution. A lot of people for example, want a super-strong 4th Amendment, a gutted 2nd Amendment, and a strongish 1st Amendment - but with the establishment clause being broader than the free exercise clause, and with the amendment interpreted in such a way that would permit the government to heavily regulate money spent in furtherance of speech. Would that be a "big supporter of the constitution" or not? I think most of us just interpret the constitution in a way that gives us our desired after-the-fact outcome, with a few purists mixed in that that see the constitution as across-the-board strong and rigid or across-the-board flexible and ever-changing. Scalia is pretty close to the former type.

[ISiddiqui]

Echoing the Scalia is a big 4th Amendment guy. Recall he was the guy who said in the Hamdi (sp?) case that we can either charge him or let him go, but having him rot in Gitmo wasn't constitutional.

Of course every ruling Scalia makes privacy related people freak out and go "OMG SCALIA" and then immediately forget it and do it again the next time out. It's like groundhog day.

[molson]

And for an originalist, a strong 4th Amendment when it comes to digital/new media stuff makes sense. If the drafters knew about cell phones, they would be freaked out about the prospect of a government accessing all that information, especially the stuff that isn't contained directly on the phone. Stealing a line from the opinion, it'd be like lawfully finding a key on someone's person and then using it to search the guy's house. That's the kind of stuff that speaks to Scalia.

[flere-imsaho]

I retract my statement on Scalia. Though I would still contend that he doesn't treat the amendments equally, which normally wouldn't matter, but doesn't seem correct for a "strict constructionist."

[molson]

I retract my statement on Scalia. Though I would still contend that he doesn't treat the amendments equally, which normally wouldn't matter, but doesn't seem correct for a "strict constructionist."

He would say that he's very much anti-strict constructionism, and instead is a originalist. In a lot of cases, that distinction doesn't make a difference, but I think it does in 4th Amendment cases. He's not looking at the words alone like Clarence Thomas would, he's trying interpret an amendment to mean what the framers intended it to mean. So when there's something like this, with cell phones (or warrantless GPS tracking) and the 4th Amendment, he's trying to assess how the framers would look at such an issue, what they would think about comparable situations, etc. Edit: There was the whole thing in the GPS case when he compared a GPS tracking device to a tiny and patient police officer hiding in the back of a horse and buggy. Alito mocked him for that.

[albionmoonlight]

One of my favorite J. Scalia 4th Amendment lines from his dissent in Maryland v. King (the DNA mouth swab case):

"I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."

[ISiddiqui]

He's not looking at the words alone like Clarence Thomas would, he's trying interpret an amendment to mean what the framers intended it to mean.

Er... not quite. Scalia IS looking at the words alone, but is looking as to what those words meant when they were written.

Thomas definitely DOES NOT look at the words alone. Thomas is very much into natural law, which Scalia does not hold any stock in during decision making.

[molson]

Er... not quite. Scalia IS looking at the words alone, but is looking as to what those words meant when they were written.


That's kind of what I meant, he isn't looking at the words in a vacuum, he is trying to decipher what they meant to the people at the time they were written. And I think inherent in that, he does go outside the words some and tries to decipher how the framers would have taken on an issue (like in that quote from Maryland v. King above.).

I am not as familiar with Thomas and forgot about the natural law angle. And I guess he and Scalia are more similar than I thought, though whatever differences they have can probably be sorted out from the 4th Amendment opinions where they're on separate sides, I know there was one of those earlier this year.

[Carman Bulldog]

I'm probably in the minority here but I don't like the ruling. In Canada, the purposes of search subsequent to arrest fall under one of the following; a. protection of public and officer safety, b. secure evidence, c. discovery of evidence.

Presently, there is a similar case in Canada that was heard in the Supreme Court around March/April with judgement reserved and likely due out sometime around September. That case stems from R vs. Fearon where the Ontario Court of Appeal essentially stated that police were allowed to do a brief cursory search of an unlocked phone to see if there was any evidence and any further searches (ie. a data dump) required a search warrant.

I hope this is the standard that the SCC adopts as I believe it is a happy medium between protecting the rights of the individual and at the same time allowing law enforcement to do their job. Let's not forget that a person firstly needs to be arrested and secondly that the search of the phone must be for evidence of the offence, therefore it can't simply be a fishing expedition.

While I didn't read the entire US Supreme Court decision, just in reviewing the two cases briefly, it looked like the US vs. Wurie case (Boston drug dealer) was time sensitive in the fact that it involved drugs. In many cases like that, if police take their time and get a warrant for the phone, the drugs are likely gone by the time they get to the information on the phone.

[ISiddiqui]

I think we'd usually say that getting a warrant and protecting privacy is more important than bowling over rights to get the drugs (well, that's the ideal of the 4th Amendment - the practice doesn't always work that way).

[Carman Bulldog]

I think we'd usually say that getting a warrant and protecting privacy is more important than bowling over rights to get the drugs (well, that's the ideal of the 4th Amendment - the practice doesn't always work that way).

I wouldn't call it bowling over if someone has been arrested for trafficking drugs and a cursory search of their text messages and contacts is done subsequent to their arrest. The grounds for the warrant will undoubtedly be there but the immediate search, let's call it exigent circumstances, prevents the loss of additional evidence. If the grounds aren't there, regardless of whether there is a warrant or not, the search gets quashed.

[ISiddiqui]

The loss of 'additional evidence' if you can't wait the 15 minutes to get a warrant is an acceptable loss for further privacy protections.

[sterlingice]

The loss of 'additional evidence' if you can't wait the 15 minutes to get a warrant is an acceptable loss for further privacy protections.

This

SI

[miked]

Can't they just get warrants for the records? Just because you delete text messages from your phone doesn't mean they are gone.

[ISiddiqui]

Can't they just get warrants for the records? Just because you delete text messages from your phone doesn't mean they are gone.

Exactly. I think the Court made that point as well (talking about metadata).

[Shepp]

All this ruling really means is that the police will end up having to do more paperwork to accomplish their investigations. If you have the attention of the police to where they need to look into your phone, they probably have a good enough reason that a judge will sign a warrant. Other than having to jump through a few more hoops this is not a big deal.

[molson]

All this ruling really means is that the police will end up having to do more paperwork to accomplish their investigations. If you have the attention of the police to where they need to look into your phone, they probably have a good enough reason that a judge will sign a warrant. Other than having to jump through a few more hoops this is not a big deal.

It's always interesting to me what reverence and trust people have for warrants. They're not wrong to think they're important, it's a necessary and important function. It's just from an emotional level, people are much less hostile towards that warrant than they are an officer. Even though every county has at least a few judges who will rubber stamp warrants. It's all the more reason officers should just get the warrant and not ever take chances. And I know sometimes they're reluctant to, and many will leave evidence on the table rather than even ask. But there's a good chance the judge thinks the 4th Amendment protects a lot less than the officer himself does. But when the officer has that warrant, all the hostility against them goes away. It's not only insurance for their job security and a conviction getting thrown out, it de-escalates a situation and makes everything less hostile and dangerous. Even if they don't need one.

[flere-imsaho]

It's an interesting point, molson, and one I definitely hadn't thought of before. Maybe once a warrant is involved people feel there's a (supposedly) objective system now overseeing the process, as opposed to the judgment of a single policeman?

[Shepp]

But when the officer has that warrant, all the hostility against them goes away. It's not only insurance for their job security and a conviction getting thrown out, it de-escalates a situation and makes everything less hostile and dangerous. Even if they don't need one.

I'm afraid I don't really agree with this. I can say with a pretty decent amount of experience that hostility toward the police doesn't go away just because an officer has a warrant. Folks who are criminals are going to hate the police no matter what they do. This has never bothered me because I don't mind being hated by criminals. The problem is that more and more law abiding people are becoming so distrustful of the police, that it is becoming harder and harder to get convictions. The revolving door judicial/ corrections system doesn't help either but that is a topic for another thread.

[Carman Bulldog]

The loss of 'additional evidence' if you can't wait the 15 minutes to get a warrant is an acceptable loss for further privacy protections.

15 minutes? I guess that's the difference between Canada and the United States. In Canada, for a population area of approximately 1.25 million, there is usually only one Justice available for the area during evenings and weekends. After 11:00 PM, they are on call. By the time an officer would get back to the office, draft the warrant, fax it off, and have it reviewed by the Justice once they are due up in the queue would be 1.5 hours at the earliest if you are lucky. Word gets around pretty fast. You would also need to delay the right to counsel in that time period as well. I think that's a bigger infringement than a cell phone search. Not to mention, a penile swab which is legal subsequent to arrest. When it comes down to a penile swab or having my cell phone looked through, I'm pretty confident which choice I would make.

[molson]

15 minutes? I guess that's the difference between Canada and the United States.

The time varies a ton in the United States. In can be 15 minutes, or several hours, or in a very rural county, the next day.

But all that can be taken into consideration under the exigency exception. An officer could still search a phone without a warrant if he had some articulated suspicion that evidence is going to be destroyed, or that there's a imminent risk to someone's safety, and that there's just not time to get a warrant. It's like the DUI case from earlier this year. Officers can no longer automatically initiate a forced blood draw when the driver refuses the breath test, but if they can show it would have taken 2 hours to get a warrant, then they have a great argument for exigency based on lost evidence. But DUI enforcement is so streamlined and efficient in most places, most agencies probably have mechanisms to get those warrants in place in minutes.

[albionmoonlight]

A lot of American jurisdictions have a 24-hour on-call Magistrate Judge (3 or 4 judges take 8 or 6 hour shifts). Officers can call the Magistrate on her cell, explain the situation, and get a warrant in 15 minutes. The days of having to put together papers and wait for the courthouse to open at 9:00 the next morning are over. Not every jurisdiction has that, but a lot do.

Also in America (I am not sure how Canada compares), you can get arrested for what people would consider very minor crimes. And even if it is obvious that the officer is arresting you as a back-door way of getting to do a search incident to arrest, the courts will allow the search.

That's why this case was a big deal.