AirTalk for August 21, 2013

Should the cops be able to search your cell phone without a warrant?

Parenting Teens Texting Mom

Matt Sayles/AP

Should police be able to search your cell phone without a warrant?

Two cert petitions have been filed with the Supreme Court seeking ruling on whether searching a cell phone requires a warrant.

In one case, the US government seeks judgment regarding a case from 2007 that involves a Massachusetts man who was arrested on suspicion of selling drugs. When making the arrest an officer noticed the suspect’s flip phone was receiving a call from “my house”, and he traced the number to an address where police later found more drugs, cash and guns. In his case the defendant (Wurie) argued that the police had no right to look at his cell phone’s call history without a warrant, and though the initial district court denied that motion, the US First Circuit Court of Appeals agreed with the defendant.

The Obama administration, countering the higher court’s ruling, points to a handful of cases that have given police discretion to search a suspect’s person under the Fourth Amendment, including items like notebooks and pagers, and are seeking judgment on whether searching through a cell phone’s call history is protected in the same way.

In the other case, Riley v. California, the police officer searched a suspect’s iPhone, and appeared to have done a more extensive search through the suspect’s contact information. At first glance it seems that searching a basic cell phone’s call log doesn’t seem to violate the Fourth Amendment, but cell phone technology has advanced so much that people nowadays hold a wealth of information and assets on their phones that make this a thornier issue. It seems that one way or the other the Supreme Court will soon have to decide exactly where cell phone data lies under the rules of the Fourth Amendment.

Is a cell phone or a smartphone akin to rifling through a paper notebook? Or is it more like searching the nooks and crannies of an automobile, which can often require a warrant for searches? What if the smartphone is connected to “the cloud” and could link up to a plethora of data belonging to the arrestee?

Guests:
Jeffrey L. Fisher, Attorney for David Leon Riley in Riley v. California; Fisher authored the current petition before the Supreme Court challenging police searches of cell phone content; Professor of Law and Co-Director, Supreme Court Litigation Clinic, Stanford University Law School

Joseph Cassilly, past President of the National District Attorneys Association (NDAA); current State’s Attorney for Harford County, Maryland


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