Can You Hear Me Now? No More Warrantless Searches Of Cell Phones

In Constitution by Steven DennyLeave a Comment

To begin, the United States Constitution guarantees everyone who finds themselves on our soil1 “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. I know which amendment it is, but I suggest you go look at it yourself. You never know what you might find when you look up things and think for yourself.2

Sounds simple right? Wrong. What’s a reasonable search? Those are not prohibited. The amendment doesn’t even mention land lines, much less cell phones.3 Exigent circumstances have long been an exception to the warrant requirement, but what is exigency? The Court recently took a step in your favor in recognizing that in a DWI case, dissipation of alcohol in a person’s blood does not in itself create exigency.4 At one time, cops thought it was okay to ask the crook if he consented to a search of his property, and if he refused, remove him from the scene or lock him in the back of a police car so they could then ask someone else with some sort of authority if they could search the house, garage, storage building, etc. If you think that is an unreasonable search, it was not until 2006 that the Supreme Court called foul on that practice.5 Don’t despair, if the cops think someone is still in there that might destroy the evidence or if they claim someone inside is in danger, they can still rush in and take a peek.

That brings us to the topic of the day. A case decided June 25, 2014 styled Riley v. California.6 What’s so important about that? Quite a bit if you have a phone in your pocket like 91% of adults in the U.S.On June 24, 2014, if you were stopped by the police and they determined that there was enough evidence for probable cause to arrest you, they had gleefully (for them) convinced courts that cell phones were an exception to the warrant requirement because they could be erased remotely.8 On June 25, 2014 and thereafter the police cannot search your phone without getting a warrant.9
 

Why should you care? You should care because all of these rights can be waived. Everyone has the right to a trial by a jury of their peers.10 If rights are absolute, why are 95%11 of Federal criminal cases disposed of without a jury trial? Why do federal judges, not juries assess punishment even if there is a jury trial? If you do not know your rights, you do not know what you can and cannot refuse. When you weren’t looking last year, the Supreme Court said that actually remaining silent was not an invocation of your right to remain silent under the Fifth Amendment, and the State could use your silence against you unless you spouted some magical language that they failed to articulate to us.12 Seriously. You read that right. Go read Salinas v. Texas, 133 S. Ct. 2174 – Supreme Court 2013 and tell me what you are supposed to say to invoke your right to remain silent.

The point is that you should be involved. Read the boring cases. The Supreme Court cases are usually somewhat understandable and they usually include some funny lines if you read carefully. Know your state law. Go to the courthouse when you aren’t a juror and sit in on a trial. Listen to hearings on motions to suppress. Invite a criminal defense attorney, judge or prosecutor to speak at whatever civic organization you are a member of.  Most importantly, you should know what all your rights are so that if you are ever forced to assert them, you are an expert on what (if anything) is left of them. In closing, do you ever wonder why police cars don’t say “To serve and protect” anymore? Go read Castle Rock v. Gonzales, 545 US 748 – Supreme Court 2005.
 

  1. Other than a very limited exception for diplomats which is more restrictive
  2. http://constitution.findlaw.com/amendment4/amendment.html#sthash.KAmPSsFJ.dpuf
  3. The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of these sorts of physical items.(cigarette packs, wallets, purses and zipper bags) That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A
  4. to point B, but little else justifies lumping them together.” P. 17

  5. http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf  Missouri v. McNeely, 133 S. Ct. 1552 – Supreme Court 2013
  6. Georgia v. Randolph, 547 US 103 at 122 – Supreme Court 2006 “This case invites a straightforward application of the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.”
  7. http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf  The case is generally known as Riley vs. California, but was decided with a companion case, U.S. v. Brima Wurie both styled 573 U.S. (2004)
  8. http://www.pewresearch.org/fact-tank/2013/06/06/cell-phone-ownership-hits-91-of-adults/
  9. Yet the government argued out of the other side of their mouths that the risk that the device did not actually contain the info rather accessed it remotely was inconsequential. Fortunately the Court recognized that “Such a search would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house.”
  10. They do note that police can search the phone to insure that it is not a weapon, and they specifically noted that they were not deciding whether officers could manipulate an unlocked phone to prevent it from locking while they obtained a search warrant. In addition, they recognized that “faraday” bags would prevent any remote wiping attempts(if there really was a legitimate concern for that in the first place) “briefing reveals only a couple of anecdotal examples of remote wiping triggered by an arrest. See Brief for Association of State Criminal Investigative Agencies et al. as Amici Curiae”
  11. http://www.law.cornell.edu/constitution/sixth_amendment
  12. https://www.bja.gov/Publications/PleaBargainingResearchSummary.pdf
  13. http://www.supremecourt.gov/opinions/12pdf/12-246_7l48.pdf

Steven M. Denny Attorney at Law has been a criminal trial lawyer since 2001 with four years as a felony prosecutor and served eight months as a justice adviser in Afghanistan. NRA certified pistol instructor.

The material contained in this article has been written or gathered by Steven Denny for informational purposes only. It is not intended to be and is not considered to be legal advice. Transmission is not intended to create, and receipt does not establish, an attorney-client relationship. 

 

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