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Do police need a warrant before they can search your cellphone?

In an article published by the Wall Street Journal, Jess Bravin discusses a hot topic regarding cell phone searches. Two cases are headed to supreme court regarding the privacy of your cell phone. This issue has been divided in the lower courts and continues to cause controversy.

The article:

WASHINGTON—The Supreme Court said Friday it would decide whether police need a warrant before they can search the cellphone of someone they arrest, the latest in a string of cases that have tested how constitutional protections conceived in the 18th century apply to the digital age.

The cellphone-search issue has divided the lower courts, and in orders issued Friday, the justices agreed to review two appellate rulings that reached contrary conclusions on similar facts.

To a federal appeals court in Boston, the vast storage capacity of a modern smartphone, which can hold virtually all pertinent information about an individual’s life, makes the device categorically different from the “pocket litter” Supreme Court precedents have permitted police to inspect when they arrest a suspect.

But in California, state courts ruled that the key fact was where the phone was found, not what the device can do. And an item found on a suspect’s person can be searched without a warrant, as part of the arrest procedure. In the Boston case, the First U.S. Circuit Court of Appeals found last May that police violated the Fourth Amendment when they used a phone number and a photograph found on a suspect’s cellphone to locate his residence, where they found drugs and a firearm.

While the Fourth Amendment generally requires a warrant before police can search private property, prosecutors argued that examining the cellphone fell into an exception the Supreme Court has read into the Constitution: a search incident to a lawful arrest, such as going through the suspect’s pockets to make sure he doesn’t have a weapon. The Supreme Court has approved the inspection of items such as cigarette packs, wallets and address books during such incidental searches, and prosecutors argued that examining the contents of suspect Brima Wurie’s Verizon LG cellphone was no different.

U.S. Circuit Judge Norman Stahl, writing for the appeals court, disagreed. “We suspect that the eighty-five percent of Americans who own cell phones” and use them for myriad purposes beyond making calls “would have some difficulty with the government’s view,” he wrote. “In reality, ‘a modern cell phone is a computer,’ and ‘a computer…is not just another purse or address book,’” he continued, citing earlier cases.

“The storage capacity of today’s cell phones is immense. Apple’s iPhone 5 comes with up to sixty-four gigabytes of storage,” which typically contains such “highly personal” information as “photographs, videos, written and audio messages (text, email, and voicemail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records,” Judge Stahl wrote. “It is the kind of information one would previously have stored in one’s home and that would have been off-limits to officers performing a search incident to arrest.”

But the companion case, decided under California state court precedents, came out differently.

San Diego police impounded David Leon Riley’s car after pulling him over for expired tags and, following their procedures, searched the vehicle and examined its contents. Looking through his Samsung Instinct M800 smartphone, they found photos of Mr. Riley allegedly making gang signs and entries suggesting gang affiliation—the letter C had been added to all the entries beginning with K to form the sign CK, for “Crip Killer,” a police gang specialist said.

The evidence helped tie Mr. Riley to a gang-related shooting, for which he was convicted and sentenced to a 15-years-to-life term.

A state appeals court in San Diego said the search had been authorized by a 2011 decision of the California Supreme Court, which upheld the warrantless search of the text message folder of an arrestee’s cellphone. In that case, Justice Ming Chin of the state Supreme Court wrote that search’s validity turned only on whether the property was properly seized “from an arrestee’s person.” The “item’s character, including its capacity for storing personal information,” was irrelevant, he wrote.

Moreover, he said that ruling otherwise “would create difficult line-drawing problems for both courts and police officers in the field. How would a court faced with a similar argument as to another type of item determine whether the item’s storage capacity is constitutionally significant?” he wrote.

The cases, U.S. v. Wurie and Riley v. California, are likely to be argued in April and decided by June.

Read the article here: High Court to Decide Cellphone-Search Case

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