Weighing The Risks Of Warrantless Phone Searches During Arrests

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The U.S. Supreme Court hears arguments Tuesday in two cases testing whether police can search cellphones without a warrant at the time of an arrest, be it for a traffic violation or for a felony.

The Supreme Court has interpreted the Fourth Amendment ban on unreasonable searches to require that police obtain a search warrant from a neutral judge upon a showing that there is probable cause to believe a crime has been committed. The warrant is to specify where the search will be conducted and the evidence being sought.

There are, however, exceptions to the warrant requirement.

The court has long allowed police to search people without a warrant at the time of their arrest. But as privacy advocate Andrew Pincus points out, until very recently, those searches were self-limiting, meaning they were limited by the amount of information an individual could carry on his person.

Now, however, because cellphones can store so much information, a person can carry more than any one of the Founding Fathers had amassed in a lifetime.

"The Library of Congress' entire collection of James Madison's papers is 72,000 pages," Pincus observes, adding, "he couldn't have carried them. They would have weighed 675 pounds." And, says Pincus, today's cellphones carry 100 times that much information.

Indeed, the iPhone 5 in its smallest storage version keeps 800 million words of text, Pincus says. That's enough to fill more than a football field's length of books, or over 8,000 photos, 260,000 private voice mails and hundreds of home videos.

"It's misleading to even think of them as phones," says George Washington University professor Orin Kerr, an expert on technology and the law. They are "general purpose computers" that have a bunch of apps, one of which is the telephone function.

And just as there is a mass of private information on smartphones, there is also a mass of information about criminal activity, which is why law enforcement wants to preserve the warrantless search at the time of an arrest.

"It's not at all uncommon now for drug rings, prostitution rings, child-trafficking rings [to have] emails, texts, pictures, all kinds of other important information on the phone that are not only important to solving crime in the long run and making sure the bad guys are convicted, but might be necessary to protect someone right now," says law enforcement advocate John Bursch.

The Cases At Hand

The two cases before the court offer an illustration of the potential advantages — and dangers — of warrantless cellphone searches.

One case involves a traffic stop in San Diego. Officer Charles Dunnigan saw David Riley driving a Lexus with expired tags. After pulling Riley over, the officer found that his driver's license was suspended. Following standard procedure, the car was brought in for impoundment and inventoried, whereupon police found two guns under the hood and arrested Riley.

During the arrest, police took his Samsung smartphone from his pocket and conducted a two-stage search of the phone. First, Officer Dunnigan scrolled through the text entries and saw abbreviations that he thought indicated gang activities. Two hours later, a detective specializing in gang investigations went through the phone's digital files — containing photos, videos, a contacts list — and downloaded "a lot of stuff."

Based on some of that information, and one of the guns, police linked Riley to a gang shooting three weeks earlier in which nobody was injured. They charged him with several serious felonies, including shooting at an occupied vehicle, a crime normally punishable by up to seven years in prison. But because he was charged with a gang-related offense, that sentence was enhanced to a mandatory term of 15 years to life.

The second case before the court goes back seven years and involves an older flip phone containing much less information. But here, too, Boston police opened the suspect's phone when he was arrested, pushed two buttons, and found information that would lead to drug and gun evidence used to win a conviction.

In both cases, the defendants contend that the information taken from their phones without a warrant should not have been used against them at trial because it was obtained in violation of the constitutional ban on unreasonable searches.

They contend that cellphone searches are not targeted, as the Fourth Amendment requires, but are more like the "general warrants" the British used to rummage through the papers belonging to the colonists. Those unlimited, unsupervised searches were the inspiration for the Fourth Amendment. That's what the Founding Fathers were trying to prevent.

Preserving Evidence

The long-established rule allowing a search incident to arrest was aimed at finding weapons that might be a threat to an officer's safety and to prevent evidence from being destroyed.

But privacy advocates say those concerns — safety and destruction of evidence — play out differently with cellphones. They maintain that police can secure a cellphone at the time of an arrest and then seek a warrant to search it later. They note that there are inexpensive bags that insulate cellphones from being wiped clean from a remote location.

Not so, reply law enforcement groups. "The bag and other tricks are far from foolproof," says Bursch. "In fact, they are kind of riddled with holes like Swiss cheese.

"Criminal rings have gotten pretty sophisticated about this," Bursch adds, pointing to an investigation in Orange County, Calif., that he says was almost derailed. While the sheriff's department obtained search warrants, the drug ring's members were instructed to immediately wipe all the digital information from their cellphones. And only one phone found in the raid was still intact with its information, according to Bursch.

Experts say they know of few such examples, but they do expect that with or without cellphone search warrants, there will be something of an arms race between cops and criminals, and between securing and erasing incriminating information.

Threat To Individual Liberties?

For the Supreme Court, however, the question is whether to stick with the rules allowing warrantless searches at the time of arrest, or whether to adapt those rules to the modern digital era and the ubiquitous smartphone.

As law enforcement sees it, there is no great threat to individual liberties. "You're only going to be in this position if you're arrested for a crime," Bursch says.

But countering that argument, civil libertarians on the left and right note that 12 million people are arrested each year, and most are never convicted of any crime. Moreover, while some of these arrests arise from felony investigations, the vast majority are for alleged misdemeanors, such as driving under the influence or shoplifting cheap items.

Professor Kerr concedes that police and prosecutors don't want to search every cellphone in every case. But because they want that power in some cases, they want a rule that allows it in all cases.

"Of course," Kerr observes, "whether you accept that or not hinges on whether you trust the government to actually only conduct the search when it would actually be appropriate."