Wednesday, January 22, 2014

Tech-savvy SCOTUS? Cellphones and Search Warrants

Cert was granted in two cases last Friday on the constitutionality of warrantless cellphone searches. Once again, the Court has the opportunity to extend Fourth Amendment protection to  information captured by rapidly evolving technology. The last occasion, while a defense win, bypassed the broader issues. In US v. Jones, the Court found, on rather narrow and  antiquated grounds, that a warrant was necessary to physically attach a GPS monitoring device to a defendant's car. Little progress was made in defining Fourth Amendment protection of the massive amount of personal information -- in particular, communications meta-data -- now available to the government through third-party technological records and resources. Only Justice Sotomayor, in a concurring opinion, observed that, in a Fourth Amendment context, secrecy cannot be a prerequisite for privacy.

Professor Jeffrey Fisher
In both of the new cert grants, police searched a cellphone seized at the time of arrest and searched the content without a warrant, a rather common event nowadays. Riley v. California involved a Samsung Touchscreen smartphone. The question, redrafted by SCOTUS, is simply, "Whether evidence admitted at [his trial] was obtained in a search of [his]cellphone that violated the Fourth Amendment." Jeffrey Fisher is counsel of record for Riley -- you know, the lawyer who won Blakely v. Washington after everyone
 else had given up hope of defeating mandatory guidelines.

The second case is US v. Wurie, a federal case arising from the warrantless search of  an old-school flip phone. Police arrested Wurie and searched his cell phone log without a warrant, then used that information to convict him at trial. Wurie won at the First Circuit, but cert was granted on the government question of "whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cell phone found on a person who had been lawfully arrested." Wurie's brief in opposition is here.

EFF (Electronic Frontier Foundation) filed an amicus brief in Riley and EFF's Hanni Fakhoury, who spoke at our recent CLE,  discusses the issue here.

SCOTUSBlog's analysis and links are here.

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