The U.S. Supreme Court rejected a decision by the California Supreme Court and unanimously ruled that police cannot search cellphones without a warrant. In issuing its sweeping decision, the justices upheld a second case from the federal court in Massachusetts that had been combined into a single ruling with the California case.
Chief Justice John Roberts, writing for the court, seemed to acknowledge for the first time that new technology was leading the court to move past long-established precedents and deal directly with issues of privacy that have morphed dramatically from even a decade ago.
In response to the government’s argument that searching a cellphone was no different than searching a wallet, Roberts wrote: “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” It was only one of a number of colorful analogies Roberts made in, perhaps, setting the stage for future reviews of any number of issues, including the National Security Agency’s (NSA) hoovering of the world’s telephone data and police assembling vast digital archives of information about innocent citizens.
The California case originated in San Diego when police stopped Lincoln Park gang member David Leon Riley in August 2009 for driving a car with expired plates. Police impounded the car and examined his smartphone, finding photographic evidence of his alleged involvement in a shooting three weeks earlier. Riley’s lawyer attempted to suppress the information, claiming the search was illegal, and lost at trial.
A 5-2 decision by the state high court, authored by Justice Ming W. Chin, upheld an appellate court ruling that cited U.S. Supreme Court precedent. Justice Kathryn Mickle Werdegar wrote a dissent, joined by former Justice Carlos Moreno, that presaged what Roberts would later write.
The Supreme Court combined the case with one that originated in Boston when police searched the flip phone of Brima Wurie. The suspected crack dealer was arrested in 2007 and police found evidence of his involvement in gun and drug crimes. A federal appeals court tossed that information out.
Court watchers were surprised at the unanimity among the justices; only Justice Samuel Alito wrote separately and that was a concurring opinion. Roberts wrote that the decision was easy, as was what it would take for officers to be in compliance with the Fourth Amendment to the Constitution:
“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”
In making their ruling, the justices turned 180 degrees from a 1973 decision authored by then-Associate Justice William Rehnquist. That ruling held that police who stopped a car and arrested its driver could conduct a search of his possessions, including pockets or a wallet. But now, “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”
Roberts, who clerked for Rehnquist early in his career, brushed aside arguments that searching cellphones without a warrant was necessary to protect officers and potential crime victims from imminent danger, and prevent the destruction of evidence. “There is no risk that the arrestee will destroy them [items of evidence]. Nor is there any risk that leaving these items unread will endanger the arresting officers.”
In roping off cellphones from warrantless searches, Roberts made an observation that could have even broader privacy ramifications for other technology. He noted that information found on a cellphone does not necessarily exist within that container. It could really reside in the “clouds,” a reference to the vast storage capacity scattered around the world on remote computers.
Roberts concluded his opinion with a history lesson that could easily be applied to the nation’s mania for collecting data on its citizens and storing the information forever. He noted that the Fourth Amendment’s admonition against unreasonable searches was inspired by the reviled “general warrants” and “writs of assistance” that the British were fond of brandishing against colonists and their own citizens.
“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” he wrote. The same might be said of NSA spying and police surveillance activities.