South Carolina

Legal showdown looms on cellphone privacy

As new technology continues to collide with privacy rights, the U.S. Supreme Court is set to hear arguments this month in two cases involving police searches of cellphones that could have a major impact on the privacy of everyone who carries a mobile device.

The cases are being watched closely by the country’s top civil liberties groups, privacy advocates and constitutional scholars, many of whom have joined in with filings in defense of privacy. The high court’s stand will guide how courts across the country will apply constitutional privacy rights and the safeguards against unreasonable searches in the age of smartphones, tablets, phablets, Google Glass and “wearable” computers.

“Technology changes the nature of the game,” said Christopher Slobogin, a law professor at Vanderbilt University and author of “Privacy at Risk: The New Government Surveillance and the Fourth Amendment.”

“The justices would need to rethink what the Fourth Amendment is all about,” he said. The amendment protects against unreasonable searches.

It was discord between courts at opposite ends of the country that landed the issue before the justices. In one case, police arrested Brima Wurie of Boston in 2007 on suspicion of selling drugs, and, after taking him to a police station, they seized two cellphones and searched his call log.

The search of the call log allowed police to determine where Wurie lived, and after obtaining a warrant to search his home, they found drugs, a firearm and ammunition.

Despite Wurie’s objection to the use of evidence obtained from the warrantless search of his phone, he was convicted of drug and weapons charges and sentenced to nearly 22 years in federal prison.

A divided federal appeals court, however, threw out his conviction last year, finding that the search of Wurie’s phone was unconstitutional.

“Warrantless cellphone data searches strike us as a convenient way for the police to obtain information related to a defendant’s crime of arrest – or other, as yet undiscovered crimes – without having to secure a warrant,” the court ruled.

In the second case, David Leon Riley of San Diego was pulled over in August 2009 for driving with an expired registration. Police searched his car and found two handguns, and ballistic evidence showed that the guns had been used in a gang-related shooting three weeks earlier.

Riley was arrested and his smartphone was seized. A warrantless search of the phone revealed pictures of Riley making gang signs and posing in front of a car that was spotted at the shooting.

Riley was convicted of attempted murder, firing at an occupied vehicle and assault with a deadly weapon. An appeals court in California affirmed his conviction, agreeing with prosecutors that searching Riley’s phone at the time of his arrest was no different from searching other items found on his person – such as his wallet, address book or pack of cigarettes – none of which require a warrant.

Riley appealed to the U.S. Supreme Court after California’s highest court declined to hear his case. The U.S. Supreme Court agreed to hear the case earlier this year.

Nearly a dozen groups joined in to support Riley with friend-of-the-court filings, including the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and the Cato Institute.