Supreme Court Blocks Most Warrantless Cellphone Searches. Is It Enough?

Supreme Court Blocks Most Warrantless Cellphone Searches. Is It Enough?

Abstract: Cellphones full of personal detail are everywhere. The Supreme Court says such data is safe from unwarranted police search. In most cases.

In the development of any criminal case, one key question a defense attorney is likely to raise is whether police followed all the proper procedures required for the investigation and collection of evidence.

Did authorities have warrants for all of the searches conducted? Did they adhere to the scope of search permitted or push the limits? If police didn't have a warrant or went beyond limits set by a judge, evidence collected deserves to be questioned as inadmissible. At stake is nothing less than a person's freedom and his or her future.

As a result of a unanimous June 25 decision by the U.S. Supreme Court, the line beyond which police cannot go is now much clearer. The justices ruled that in most instances, police may not search the cellphone of a person they've arrested. This could have significant implications for individuals facing
drug charges or any other crime charge.

The only exceptions to the rule are if police have exigent circumstances, such as locating a missing child or thwarting an attack. Even then, the circumstances would have to be such that a judge's approval would be assured after the fact.

Privacy advocates applaud the decision

The ruling is seen by privacy advocates as a major win. They have argued that the law hasn't kept pace with cellphone technology and they say this ruling represents a big step forward.

Indeed, Chief Justice John Roberts made the observation in the court's opinion that because of the scope of applications inherent in today's phones, they probably shouldn't even be called cellphones. He noted that they serve as still and video cameras, video players, televisions, navigation aids, newspapers and Rolodexes.

All that being so, and noting that more than 90 percent of all American adults own cellphones, Roberts' opinion said the devices are practical libraries of the private lives of anyone who has one and deserve protection.

In its efforts to defend the right of police to conduct searches of phones, the government reportedly had argued that a search of cellphone data is virtually the same as the search of a backpack of a suspect upon apprehension. But Roberts disagreed and emphasized the distinctiveness of digital data by saying the government's argument was "like saying a ride on horseback is materially indistinguishable from a flight to the moon."

One loophole may remain

The decision reversed convictions of defendants in two separate cases. One out of Boston overturned a drug conviction that was based on information about a drug stash the suspect had documented on a flip phone. The other, out of San Diego, involved a man police connected to an alleged gang shooting by virtue of photos on his smartphone.

But there is still one issue that appears somewhat cloudy from the ruling. It has to do with police abilities to track cellphones and whether that amounts to a privacy violation.

Two years ago, the Supreme Court said police cannot attach a physical GPS device to a suspect's vehicle without a warrant. But cellphones can be tracked by police using cell tower signals. Does the latest ruling outlaw such practices as an invasion of privacy if they're done without a warrant? The language of the opinion does not speak to that specifically, but an analyst for SCOTUSblog says protection against tracking is implied.

Implication is much like assumption where the law is concerned. If there is uncertainty, it can be dangerous. Anyone facing criminal charges should be consulting with experienced legal counsel.

Keywords: drug charges, search and seizure