An unanimous U.S. Supreme Court determined that police officers
must get a warrant to search a suspect's cellphone, absent an
exigent circumstance. The Court, taking Riley v. Cal and U.S. v.
Wurie together, found that officers searches of
suspects' respective cellphones, without a warrant violated the
suspects' Fourth Amendment Constitutional rights against
"unreasonable searches and seizures."
I know what most regulars to
OP-IP are thinking; what does this have to do with intellectual
property law and technology and more importantly, what this guy
know about criminal law and/or constitutional law? Although I
may not be a criminal defense attorney or prosecutor, and I did not
even stay at a Holiday Inn Express last night, I did
take Criminal Procedure with Susan W. Brenner and Constitution Law with
the legendary Allen Sultan (the virtual Forrest Gump of
law professors) at the University of Dayton School of Law.
And, I interned at the City of Dayton Prosecutor's
Office the summer after my first year of law school.
Clearly, I am eminently qualified to speak on this topic.
More importantly, based on my association with the International
Technology Law Association (ITechLaw), I was asked by
the National
Newspaper Publishers Association (NNPA) (also known as the
Black Press of America) to opine on these Supreme Court decisions
for one of its upcoming articles. Accordingly, since I was
already familiar with these cases, I decided to write about them
here.
So, why did the U.S. Supreme Court determine that officers must
first secure a search warrant before looking through a
suspect's cellphone? The Court first acknowledged that
the Fourth Amendment gives us the right against
unreasonable searches and seizures and emphasized that the
"ultimate touchstone" of the Fourth Amendment is "reasonableness"
of the search. Then, the Court looked to what was being
searched, namely modern cellphones, including smart phones, such as
an Apple iPhone 5S (shown above). The
Court found that the pervasiveness of cellphone use, their immense
computing power and voluminous amounts of data (including personal
information) that is stored in their 16 gig up to 64 gig all weigh
against the reasonableness in allowing searches without a warrant.
Further, the Court recognized that many smart phones are
linked to cloud storage services meaning that a search may include
even more information. Taken as a whole, the Court found the
warrantless search to be unreasonable.
The Court dismissed the government's position for why it
should not need to seek a warrant first, namely that evidence on
the smart phone could be permanently lost if the smart phone's
data could be remotely wiped or the locked-down. The Court
address these concerns by saying that a smart phone could be
preserved from remote wiping by turning the phone off or using
technology to block remote wiping and lock-down wireless
signals.
Finally, the Court said that if there is a real concern that
evidence might be lost, a warrantless search would be permitted
under one of the exigent circumstance exceptions.
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