Jan. 18 (Bloomberg) -- The U.S. Supreme Court will consider whether police making an arrest must get a warrant before searching the suspect’s mobile phone, accepting two cases that test the bounds of privacy in the digital age.
Lower courts have reached different conclusions, with some saying police can constitutionally look through a phone just as they can search other objects in the person’s possession at the time of arrest.
Other courts say the vast trove of information on modern phones requires new limits for police. In one case accepted yesterday, a federal appeals court said the Justice Department was seeking “automatic access to a virtual warehouse of an individual’s most intimate communications and photographs.”
More than 90 percent of American adults own mobile phones, giving the cases broad practical significance. The outcome also may hint at how the justices would view the National Security Agency’s telephone-data program, an issue likely bound for the high court.
The Supreme Court announcement came hours after President Barack Obama delivered a long-anticipated response to the uproar over the NSA’s surveillance methods. In a speech, Obama defended the program while promising to put new restraints on the agency.
The court will hear arguments on the mobile-phone cases in April and rule by early July. Both cases test the Constitution’s Fourth Amendment, which bans unreasonable searches.
One of the cases involves an old-style “flip” phone with limited data capacity, while the other concerns a newer smartphone.
The smartphone case stems from David Leon Riley’s 2009 arrest in San Diego for carrying concealed and loaded weapons under his car’s hood. Police took Riley’s Samsung Instinct M800 smartphone, searching it at the scene and later at the station.
Officers found photos and videos suggesting Riley was a member of a gang, as well as a photo of him and another person in front of a car that police suspected had been involved in a shooting. The information eventually helped prosecutors win a conviction of Riley on shooting-related charges, including attempted murder.
Riley was sentenced to 15 years to life in prison, and a California state appeals court upheld the conviction.
In the flip-phone case, the Obama administration is seeking to reinstate the conviction of Brima Wurie, who was arrested in 2007 in Boston for allegedly selling drugs.
At the police station, officers saw that Wurie’s phone was repeatedly receiving calls from a number identified on the caller-ID screen as “my house.” An officer opened the phone, checked the call log and found the number for the house.
Police then used that number to get Wurie’s address. They eventually found crack cocaine, marijuana and a firearm in his apartment. A jury convicted Wurie on drug and weapons charges and he was sentenced to more than 21 years in prison.
A Boston-based federal appeals court overturned the conviction, saying police had violated Wurie’s constitutional rights. The appeals court adopted what it called a “bright-line rule” barring warrantless mobile-phone searches unless police can show a special need to act immediately.
The Obama administration, urging the court to reinstate Wurie’s conviction, points to past Supreme Court cases that say officers may search any item found on someone being arrested. The government says immediate searches of mobile devices are especially important because of technology that would let people without physical access erase a phone’s content.
“No sound reason justifies excluding cell phones, the contents of which are far more susceptible to destruction than most other evidence,” U.S. Solicitor General Donald Verrilli argued.
Privacy advocates say the government has other means to preserve evidence, including “Faraday bags,” which can prevent the destruction of phone data from the outside.
Given the capacity of today’s smartphones, a police officer searching a device might be able to discover banking activity, medical records, work-related e-mails and personal photos, said Jeffrey Fisher, Riley’s Supreme Court lawyer.
“Searching a cell phone without a warrant intrudes on personal privacy to an extraordinary degree,” Fisher wrote.
In accepting the Riley case, the justices hinted that they aren’t looking to provide a comprehensive answer to issues about smartphone searches. The justices said they will decide only whether the evidence used at Riley’s trial -- including videos and photos pulled from his phone -- was obtained in violation of the Fourth Amendment.
In the appeal, Fisher had asked the court to consider a broader question: “whether and under what circumstances” officers may conduct warrantless searches of phones.
The cases are Riley v. California, 13-132, and United States v. Wurie, 13-212.
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