Supreme Court takes note of smartphones’ reach in privacy case

04/29/2014 3:58 PM

04/29/2014 4:20 PM

Warrantless smartphone searches worried Supreme Court justices Tuesday, with several challenging law enforcement intrusions on privacy.

In a high-tech case that goes well beyond its San Diego origins, liberal justices in particular seemed poised to limit what police may do with iPhones and similar devices taken during arrests.

“Most people now do carry their lives on cellphones, and that will only grow every single year as, you know, young people take over the world,” Justice Elena Kagan noted.

At the same time, pointed questions from conservative justices and persistent probings by Justice Anthony Kennedy, frequently a swing vote, hinted at a difficult split decision ahead.

“Smartphones do present difficult problems,” acknowledged Justice Samuel Alito, a conservative who often sides with law enforcement.

The California smartphone case heard Tuesday, along with a somewhat different case involving a Massachusetts cellphone, brought justices face to face with devices that are banned from the courtroom itself. Most everywhere else, the phones are omnipresent and ever more powerful as far as range, capacity and utility.

An estimated 91 percent of U.S. adults own cellphones and 56 percent of U.S. adults were using smartphones last year, according to surveys. They are capacious. An Apple iPhone 5 with 16 gigabytes of storage can hold the equivalent of about 800 million words of text and more than 8,000 digital photographs.

Myriad applications, or apps, provide virtual access to medical, financial and personal records. Global Positioning System data is routinely stored, providing electronic footprints to past locations. Justices on Tuesday repeatedly noted the power of the technology, hinting that it will color their decision.

“With digital cameras people take endless photos and it spans their entire life,” Justice Sonia Sotomayor noted, adding that “a GPS can follow people in a way that prior following by police officers in cars didn't permit.”

The California smartphone case started when a San Diego police officer pulled over David Leon Riley on Aug. 22, 2009. Police impounded Riley’s Lexus because he’d been driving with a suspended license, and in a subsequent search they found two guns.

A police officer checked Riley’s unlocked Samsung Instinct phone, and found video clips of gang initiation fights, pictures of gang signs and clips of a red Oldsmobile allegedly used in an earlier gang shooting.

Convicted on charges that included attempted murder, Riley was sentenced to prison for 15 years to life. The 23-year-old is incarcerated at California’s Kern Valley State Prison.

“Even if we're in a world where the police can seize some evidence and keep it and use it for the prosecution . . . there are still very, very profound problems with searching a smartphone without a warrant,” said Riley’s attorney, Stanford Law School Professor Jeffrey L. Fisher.

California officials countered that police need to be able to conduct searches, regardless of the format.

“The consequence of carrying things on your person has always been that if you are arrested, the police will be able to examine that to see if it is evidence of crime,” California Solicitor General Edward DuMont said.

Kagan was among the skeptics.

“On your argument,” Kagan told DuMont, “a person can be arrested for driving without a seat belt. And the police could take that phone and could look at every single email that person has written, including work emails, including emails to family members, very intimate communications, could look at all that person’s bank records (and) medical data.”

In Brima Wurie’s case, Boston police lacked a warrant when they quickly checked the call log on his gray Verizon LG phone after arresting him on drug and gun charges. Wurie was convicted in 2009 and is serving a 262-month prison term.

The cases will force the court to update the rules governing post-arrest searches and their compliance with the Fourth Amendment’s ban on unreasonable searches and seizures.

In a 1973 decision that involved the discovery of heroin inside a crumpled cigarette pack, the Supreme Court upheld the authority of police to thoroughly search someone who’s been arrested. There are limits, though. The searches are supposed to be for weapons or relevant evidence.

“We’re living in a new world,” Kennedy said during the Wurie oral argument, adding that “someone arrested for a minor crime has their whole existence exposed on this little device.”

Justice Clarence Thomas, as is his custom, did not speak or ask questions during the oral arguments. Decisions in both cases are expected by the end of June.

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