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Supreme Court to weigh cellphone searches

Americans' right to privacy in the data contained on their cellphones will be in play at the Supreme Court Tuesday, as the justices hear oral arguments in two cases dealing with police searches of personal electronics when suspects are arrested.

In the first case, Riley v. California, scheduled for 10 a.m., the cellphone of a man arrested for concealed weapons was searched, revealing photos, videos and text messages linking him to gang activity and another crime. In the second case, United States v. Wurie, slotted for 11 a.m., police used the call logs and incoming calls of a man arrested for a drug crime to lead them to a home where they collected evidence against him.

Both suspects challenged the search of their cellphones as a violation of the Fourth Amendment, arguing that the information contained within personal electronic devices cannot be searched without a warrant when a person is arrested.

The governing case on the topic of what can be searched when someone is arrested centers around a cigarette pack and was decided in 1973; privacy advocates say that personal electronics are fundamentally different than opening a closed container and should be held to a different standard.

While the cases Tuesday focus on searches of cellphones, similar questions have also come up with respect to other personal devices, including laptops searched at the border, and privacy experts are concerned that applications on such devices which connect to a data cloud might also be searched.

The Obama Administration has argued that cellphones do not require a different constitutional protection than anything else someone might carry on them. In a brief filed in Wurie (posted here), the solicitor general likens photos and information on a cellphone to anything someone might carry in a briefcase, and notes that police officers were allowed to read and look at such documents when people tended to carry them in hard copy.

The brief also argues that not allowing police to search cellphones puts evidence at risk, as individuals could remotely wipe their phones before officers could obtain a warrant to search them.

The government does argue for some limitations to the searches, however, including narrowing the scope of the search to places on the phone that could reasonably contain evidence and keeping searches to evidence related to the crime a person is suspected of. An individual's call logs would always be reasonable to search, though, the government argues.

Lower courts have been split on the issue, with some state courts and the 1st Circuit Court of Appeals requiring a warrant for device searched upon arrest, while other state courts and federal appeals courts have ruled one is not required. When the Wurie appellate decision was considered for review by an en banc 1st Circuit panel, the court took the unusual step of denying the en banc hearing with an explanatory statement that the judges wanted to expedite a Supreme Court decision on the subject, citing lack of clarity in the lower courts.