Rules needed for police to search cellphones

The Los Angeles TimesOctober 7, 2013 

The following editorial appeared in the Los Angeles Times:

Once they place a suspect under arrest, police in many parts of this country are allowed to search the contents of his or her mobile phone – including text messages, photos, video files and contacts – without a warrant. These searches can expose a wealth of personal detail that was inconceivable to the Supreme Court 40 years ago when it gave officers wide latitude to search people and their effects when taking them into custody. It’s time for the court to adapt its doctrine to new technology. Two pending appeals provide the justices with that opportunity.

In a case from California, David Riley, a college student, was pulled over for expired tags. When police discovered that Riley had a suspended license, they impounded his car, searched it and found guns under the hood. When Riley was arrested on a gun charge, police confiscated his Samsung smartphone and searched through what one detective referred to as “lots of stuff.” They found text messages referring to a gang and a photo showing Riley and another man posed near a car that had been involved in a shooting. Riley was convicted in the shooting, after a trial in which prosecutors played a video found on his phone.

In seeking review by the Supreme Court, Riley’s lawyers noted that lower courts have been struggling to apply to cellphone searches “a set of legal rules largely developed decades ago, before the digital era.”

Also pending is the Obama administration’s appeal of a decision, by the U.S. 1st Circuit Court of Appeals, that police may not conduct warrantless searches of data on cellphones seized by arrested persons. That case involved a suspect whose phone received calls from a number identified as “my house.” When police went to the address associated with that number, they found crack cocaine, marijuana, cash and a firearm.

Historically police were allowed to search the possessions of those they arrested because of the possibility that a suspect might threaten the officers with a concealed weapon or might try to destroy evidence. But in 1973 the Supreme Court said that such searches were legal even when there was no probability that weapons or evidence would be found. Bad as it was at the time, that holding threatens a vastly worse invasion of privacy when the object searched isn’t a cigarette pack but a smartphone.

The court need not agree with the 1st Circuit that warrantless searches of cellphones are always unconstitutional. It could rule more narrowly that searches are permissible when necessary to preserve evidence of the crime for which the arrest was made – for example, if there is a danger that confederates could remotely swipe incriminating information from the phone before a warrant could be obtained. But the court should make clear that police are not entitled to conduct an electronic fishing expedition into every aspect of a suspect’s life.

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