Secure In Their Persons, Houses, Papers, and (Phones)?

By Sasha Bryski
 
As technology continues to advance, our expectation of privacy afforded by the Fourth Amendment regarding information on our cell phones is an unresolved issue for law enforcement, civil rights advocates and the ninety-one percent of the US population who use cell phones (1). Specifically at issue is whether the search of a cell phone, incident-to-an-arrest, falls within the recognized exception to the general rule that a warrant is required for a government search. 

What has changed is that cell phones now carry our life’s story, from billing and tax information to emails and texts from colleagues, friends, foes and significant others.   While the search incident to an arrest exception is applied when a person is outside of their home, a mobile device now carries, as described by Nicole Flatlaw of ThinkProgress, “as much information about a person as one might find from searching their home.” (2)

To date, a majority of state and federal courts have allowed police to search cell phones incident to an arrest. For example,  in Gracie v. State, Alabama Court of Appeals (2011) the  search of a suspected robber’s cell phone’s call log and text messages for evidence of an accomplice was upheld. Likewise, in U.S. v. Murphy (2009), the 4th Circuit Court of Appeals upheld the warrantless search of a cell phone to develop additional evidence when counterfeit currency and drug-related items were found with the arrestee in his car.   

However, recently circuit courts have widened the split on this issue. The 1st U.S. Circuit Court of Appeals in U.S. v. Wurie (2013) held the warrantless search of an arrestee’s cell phone unconstitutional.  Wurie was stopped on suspicion of selling drugs and was arrested after crack cocaine was found on his person. A search of his cell phone for evidence of his drug trafficking was conducted at the police station where the phone was first seized. Referring to the personal information held on cell phones, the judge’s ruling stated “It is the kind of information one would previously have stored in one’s home and that would have been off-limits to officers performing a search incident to arrest.” 

The first circuit denied a petition to rehear this case with the chief judge asking the Supreme Court to step in, stating, “Only the Supreme Court can finally resolve these issues, and I hope it will.”

Last week, the Solicitor General filed a petition asking the Supreme Court to grant certiorari to hear the case. The government argued that the First Circuit’s ruling conflicts with the rulings of several other appeals courts, and that a cellphone is no different than any other object a suspect might be carrying.

The Supreme Court has been circumspect on Fourth Amendment rights with regard to cell phones.  In City of Ontario v. Quon, rather than addressing whether employees have a right to privacy in messages they send on work-issued mobile devices, the Court sidestepped the issue and ruled that the employer’s acquisition of the texts was reasonable under the circumstances.  

At the same time, a related issue is brewing in the circuits on whether police need a warrant to obtain historical cellphone location information from service providers. The 5th circuit ruled that a warrant was not required for the government to obtain the data. Here, the police requested 60 days of data including the date and time of the call and the number and location of the phone.  The American Civil Liberties Union (ACLU) argued that individuals have an expectation of privacy on their location when tracked in a space like their home over a period of time. The court ruled that cell phone records are business records, voluntarily transmitted by cell phone owners to the service provider in order to make a call.  Therefore, the Fourth Amendment does not apply.  This ruling conflicts with a decision from the 3rd circuit in 2010 and there are other cases pending in the courts.     

In the myriad of rulings on cell phones and the right to privacy afforded by the Fourth Amendment, other questions have been raised:  Are citizens subjecting themselves to this intrusion by the simple purchase of a phone? Should the Court put off a decision until technology advancements stabilize? With 8 million cell phone calls made per day, callers and texters are awaiting a decision on what constitutes an unwarranted search of their private calls, texts and photos. (3)

1. "Pew Research Center's Internet & American Life Project." Pew Internet: Mobile. N.p., n.d. Web. 16 Oct. 2013.
2. Flatlaw, Nicole. "Whether Police Can Search Your Cell Phone Depends Who You Ask." ThinkProgress RSS. ThinkProgress, 30 July 2013. Web. 16 Oct. 2013
3. "How Many Cell Phone Calls Are Made a Day? - Dead Zones." Dead Zones. N.p., n.d. Web. 16 Oct. 2013.