Police and Cell Phones: Defining Unreasonable Search and Seizure

Tuesday, April 29, 2014

A customer tries out the Apple iPhone 5 inside the Apple Fifth Avenue flagship store on the first morning it went on sale on September 21, 2012 in New York City. (Mario Tama/Getty)

Today, the Supreme Court will hear two back-to-back cases that could have serious consequences for the way we think about privacy and communication in modern life.

The Court will consider a new question surrounding search and seizure as it relates to that most modern and most ubiquitous of devices: The smartphone. At issue is whether police need a warrant before searching the mobile device of a person under arrest.

As it stands now, the Fourth Amendment outlaws unreasonable search and seizure, and the Supreme Court has examined that Constitutional principle in relation to phone conversations and snail mail, in school lockers and home property. But the birth of new technologies is raising a whole new set of legal questions.

The first case before the Court is Riley v. California, which began in 2009 when San Diego police officers arrested David L. Riley for driving without registration. The officers found loaded weapons in Riley's car and gang-related messages on Riley's smartphone. The other case, United States v. Wurie, began in 2007, when Boston police officers used call logs from an arrested woman's flip phone as evidence of her guilt in drug and gun-related crimes.

These cases have found their way to the Supreme Court in part because police officers believe that smartphones are a vital source of evidence. Charles Ramsey, Philadelphia Police Commissioner, explains why he believes the government has a "compelling interest" in searching the smartphones of arrested persons.

"It is technology that we have to deal with on a regular basis in today's world," says Commissioner Ramsey. "I realize that there is personal information in smartphones, but when we do make an arrest it is very, very important that we're able to have access to information that would lead us to a criminal conviction in a particular case."

Commissioner Ramsey, who is also the president of the Major Cities Chiefs of Police Association, an organization that filed a friend of the court brief supporting warrantless smartphone searches, says collecting data and information from these types of mobile devices is critically important for law enforcement in this day-and-age.

"If it's a regular cell phone without smartphone technology, that's different because those phones don't have the ability to erase automatically or remotely like you do with a smartphone," he says. "But more and more people are moving away from regular cell phones. In fact, it's probably not even that easy to buy a regular cell phone anymore—just about everything is a smartphone. As this technology continues to advance, it's going to become more and more difficult for us to be able to preserve evidence of a crime."

According to Commissioner Ramsey, a warrantless smartphone search ensures that evidence can be collected in a timely manner before a suspect has a chance to destroy it—something that he says was done in Orange County, California. 

"The sheriff's office there conducted a raid of a narcotics organization and a money laundering organizations," he says. "Others got wind of the fact that the arrests were going down and remotely erased all information from cell phones of every member of that organization. In fact, that particular drug organization had its own IT department that was capable of doing just that. Obviously, there was an awful lot of evidence lost as a result of that."

Commissioner Ramsey says this case in Orange County provides an example as to why the Supreme Court should allow law enforcement officials to search the smartphones of those under arrest without a warrant.

"Waiting to get a warrant is not always piratical," he says. "We're hopeful that the Court will take today's technology into consideration when making their decision."

While there are current laws against evidence tampering and obstruction of justice, Commissioner Ramsey says prosecuting someone under the existing statute for deleting cell phone data, photos, videos, contacts or other information that may be considered evidence in a criminal proceeding would be extremely challenging.

"It would be a very difficult thing to prove if you don't have evidence that the reason why they erased the information was to avoid criminal prosecution," he says.

Law enforcement officials already have the authority to search an individual's pockets and property on or near their person upon arrest, something that dates back to the common law era and is frequently referred to as the search-incident-to-arrest doctrine. Commissioner Ramsey and others in favor of warrantless smartphone searches argue that the practice would fall under the aforementioned doctrine.

"It's going to be a difficult case for the Supreme Court to sort through," he says. "Hopefully they listen to all the arguments and understand that at the time the Constitution was written, and the Fourth Amendment of unlawful searches and seizures, our founding fathers did not have to deal with the technology we deal with today."

Sophisticated technology is what makes the need for warrantless smartphone searches compelling, Commissioner Ramsey argues. He says that a mobile application is currently being developed that automatically configures an individual's GPS location and erases all data from a device if the location signal determines a person is in a police station.

"Technology is advancing so fast that it's difficult to keep pace, and it's going to create some serious problems for us in the future," he adds. "The technology itself has created the exigent circumstances that we're talking about here, and it's advancing every single day."

Technology Vs. Law

So will a warrantless smartphone search become a lawful practice? Providing the legal perspective for how the judges might rule is Stephen Cribari, a professor of law at the University of Minnesota.

"This is a very tangled legal mess," says Cribari. "I don't think there's a technological fix because technology advances so fast that once you fix it, it's going to change and you're going to have to fix again."

Professor Cribari says that the issue at the heart of this case is a question of privacy—do individuals have a expectation of privacy when it comes to the data on their smartphones that extends beyond the search-incident-to-arrest doctrine?

The professor says that Justice Sonia Sotomayor has already raised this question in the case U.S. v. Jones, which concluded that tracking a suspect's car by attaching a GPS device to it amounts to a search under the Fourth Amendment. In that case, Justice Sotomayor wondered whether an individual can have a reasonable expectation of privacy for information that has been knowingly exposed to the public.

"When you use [a smartphone] it's a data stream that goes into space and comes back," says Cribari. "We have to talk about in terms of analogies because very few people have the savvy to talk about it technologically. It's not like a letter—you're not sealing something up and putting a stamp on it, it's like a postcard because all of the data goes out, goes around, gets copied, reassembled and goes back. And yet, you want privacy in it."

Professor Cribari says that a similar issue was raised in the 1989 case United States Department of Justice v. Reporters Committee for Freedom of the Press. During the case, which took place during the very early days of the digital age, Justice Stevens described an interesting conundrum that has since been dubbed "practical obscurity." While some information may be technically public, if it is held in a variety of different locations and requires a great deal of effort to locate, the information is practically obscure and simultaneously public and sensitive.

Professor Cribari says he does not believe the Court will recognize piratical obscurity in this case.

"My students every year believe that because their data is personal and many instances intimate, it is therefore private," he says. "I don't think we can say the Supreme Court has ever protected the content of information—it protects where you say it and how you speak it."

Guests:

Stephen Cribari and Charles Ramsey

Produced by:

Jillian Weinberger

Editors:

T.J. Raphael

Comments [17]

typical corporate radio junk; you present a cop who puts out the usual rap about how cops are simply trying against great odds to fight crime and protect us. As if we have never heard these sort of "justifications" before. SEE, the patriot act; SEE, the war against drugs prison sentences. SEE, the red scares. The recent reversals of felony convictions, caused by DNA evidence, that also resulted in the revelations of the withholding of evidence, tampering with witnesses, etc, that resulted in the wrongful convictions. Think about the hundreds of convictions reversed in chicago aand LA when the corrupt practices of the "elite" felony squads was revealed.

And your "guest" of courase describes how the cell hone led to breaking up what he seems to describe as the biggest drug ring in history. how about describing how the cops use any facts and evidence they get their hands on to create a false circumsatnial trail leading to innocent people being convicted?

Apr. 30 2014 11:19 AM
Count of Tower Grove from St. Louis

So the police commish seemed to argue that prosecution should be easy to do. Our judicial system puts the burden of proof on the state. It should be exactly that, a burden

Apr. 30 2014 12:00 AM
Whitney

Couldn't they find some way to download/copy the content of the phone so it can't be erased, then seek a warrant, then if they fail to get the warrant, they could delete the downloaded content without looking at it?

Either right now, or some system in the future where smart phone companies integrate a method that works with this.

Apr. 29 2014 03:56 PM
Tapio from San Francisco

Police Commissioner Charles Ramsey says that technology is making it "almost impossible" for police to gather evidence of a crime. How did police ever gather evidence prior to cell phones?

Apr. 29 2014 03:25 PM
Chris O'Connell from Redwood City, CA

The Police Commissioner obviously has no love or interest in the 5th Amendment Clause that states: "[No person] shall be compelled in any criminal case to be a witness against himself." He seems to be demanding that police have full access to a person's cell phone to look for evidence of criminality. He objects to the the fact that they can erase information on their cell phone - i.e. that they can choose to NOT be a witness against themselves.

Apr. 29 2014 03:19 PM

Re: Corey from Canton. Since I could have an application on my PC that allows remote wiping (it is the same concept as wiping a phone), then if the "no warrant needed" argument prevails, any electronic device that could host a "wipe" application could be searched without benefit of a warrant.

Apr. 29 2014 01:52 PM
Daniel from Portland, OR

I am afraid the professor needs to do a bit more research before he continues using his mail vs postcard example with his class. Cell phone transmissions (texts, email, web access) are highly encrypted and far more secure than the glue on any envelope. He is welcome to freely download programs that will intercept the traffic but it will be absolute gibberish without having in hand the sender or the receiver.. so yes, I absolutely expect privacy in the transmission of my data, more so than with my mail. It doesn't mean that the other end-point has to keep it secure - if I send a letter to my grandma I can't keep her from showing it to her friends - but while it is with the post office it requires a warrant. And if my phone has password protection on it (free, available on every phone) you can be sure that I have as reasonable an expectation of privacy on it as closing a phone-booth door.

My phone also has private pictures that never get transmitted, and typed documents that only sync directly with my home computer. Not only that but many devices today are linked to work computers meaning that the information on them is covered by NDAs and could contain highly-classified data. The workplace (and I mean every top technology company from Google to Intel to Apple)considers the device to be personal and private.

Lastly yes, technology moves quickly, but crimes were getting solved left and right before smart phones, without having any issues with constitutional 'guidelines' (they are not 'guidelines' by the way, anymore than the freedom of the press or the right to bear arms, they are laws of the land). If there is a crime, there is evidence other than the smartphone. Use that.

Apr. 29 2014 12:35 PM
Steve from Beaverton, Oregon

I'm surprised NPR didn't interview any technologists about this. It appears there is a simple solution: At the point of arrest, confiscate and turn off any smart phone. Yep, if the phone isn't on, it can't be erased because it can't receive the "wipe phone" command. In fact, some of the enterprise phone wiping blogs mention this: Remote Device Wipe is very limited if you can only wipe devices that you can see in your console – usually if someone is snatching a device they do not stay on your network for long. (source: http://theemf.org/groups/mobile-security/forum/topic/remote-wipe-security-control-or-security-fantasy/)

Want to be doubly, triply or quadruply sure? Remove the battery, remove the SIM card, put the phone in an RF shield box. Now, once the warrant is in place, take the phone into an RF shield room (otherwise known as a Faraday cage: see http://en.wikipedia.org/wiki/Faraday_cage), turn on the phone, and see what evidence is there in a location where the remote-wipe command can't received due to the RF shielding.

Apr. 29 2014 12:34 PM
Lisa from Bainbridge Island

I found that law professor infuriating. I thought he sounded very biased in his explanation of the law. "When you release a text it's not sealed like a letter and it gets taken apart and put together a million times so it's public". What is that? The discussion is about EXPECTATION of privacy, and just like you have to release a letter to the post office, the business that carries the letter for you, with the understanding that the 100s of people who touch it will not open it, you release your texts to the cell phone company with whom you have a contract and you have an EXPECTATION that they will not read it before it reaches the intended recipient. If you wanted something to be public, you would put it on FACEBOOK, and that, I would argue, would be something the courts would rule is a forum where we all expect to lose privacy. Private emails or texts, whether sent from a computer or a phone (and computers need to have search warrants, right?) are expected to be private. The rest is semantic and distracting from the truth of the situation.

Apr. 29 2014 12:30 PM
Linus from Philadelphia

I don't buy the argument that police need immediate access to a smart phone because of the risk of losing data. There is a technological solution: either turn off the radio (put the phone in airplane mode) or quarantine it in a container that prevents reception of radio waves until you can get the warrant.

Apr. 29 2014 12:27 PM
ANON from expectationofprivacy, USA

The idea that all data on a smart phone is public as stated in the segment is semi ludicrous. Sure, I have no expectation of privacy with a standard Facebook wall post, but shouldn't I have some level of privacy within my email? my SMS text messages, ect.? What if I 'batten down the hatches' of my Facebook privacy settings? Isn't that in a way creating an expectation of privacy?

Apr. 29 2014 12:25 PM
Stephan Vertal from Portland,Or

This is a very appropriate date to contemplate race relations in Los Angeles and nationwide. April 29, 1992 rioting erupting in Los Angeles following the verdict in the Simi Valley trial of officers beating Rodney King.

Apr. 29 2014 12:15 PM
Ben from Boston

The idea that officers need to be able to search a smart phone immediately upon arrest because criminals are so technologically advanced that there's no way officers can preserve evidence is completely absurd. There are several ways to ensure that a phone that is seized can't be remotely wiped. Put it in airplane mode. Turn it off (I don't know of a single phone that can't be powered down from the lock screen). Or, the best solution, make sure each officer has a faraday bag (a metal lined bag that blocks all signals) to put phones they seize in. I don't care what program the criminals are using, you aren't remotely wiping a phone that is off or can't receive signal. This will give officers plenty of time to go and get a warrant and removes any exigent circumstances that would require an immediate search of the phone.

This is just another example of officers trying to get away with free searches without having to comport with the constitution. If it was up to officers they wouldn't need a warrant to search anything. In their eyes, anyone who has something they don't want others to see is a criminal.

Apr. 29 2014 11:36 AM
astride duarte from Cramerton NC

The fourth amendment is just a nuisance to the police and they will look for any way around it. The excuse that criminals could remotely erase data off the phone before they get a warrant is a non issue because evidence could be removed from a residence as well before a warrant is issued so what they really want is to do away with the warrant requirement. They are just chipping away at all of our freedoms hoping we won't notice.

Apr. 29 2014 10:05 AM
Corey from Canton, Ohio

You should have had a technical consultant interviewed as well. There are good solutions to this problem that do not violate "Due Process" and Privacy. These are brief explanations, there are a lot more specifics available to back them up.

The proper use of the power switch, battery removal (if possible), and a Faraday cage along with a false GPS signal would be a good first start.

Also, most signals from phones are now encrypted which is the digital equivalence of placing the data in a sealed envelope. Locking the device is the same.

This could impact laptops and desktops as well allowing seizure without a warrant.

Apr. 29 2014 10:04 AM
Ash from Ohio

Where do we draw the line? Is privacy going to be a luxury for US citizens? Police search of cell phones without warrants is an absolute violation of personal rights. It is another excuse!

Apr. 29 2014 09:29 AM
David Panofsky from Brooklyn, NY

If the expectation of privacy analogy is sealed letter vs postcard, then cellphone privacy should be based on whether a lock-screen password is used. Similarly, communication transmitted over SSL should be off limits (heartbleed not withstanding)

Apr. 29 2014 09:28 AM

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