Civil and Human Rights

In legal matters, are smartphones too chatty for your own good?

By Michael Doyle


WASHINGTON — The Founding Fathers will meet the selfie generation next week when the Supreme Court dials up the case of a California man incriminated by his smartphone.


Loaded with pictures, some of them imprudent, David Leon Riley’s Samsung Instinct was searched by police in 2009 without a warrant. He got busted. Now the justices, who sometimes seem uncomfortable with new technologies, will consider a quintessentially 21st-century problem.


In an unplugged courtroom Tuesday, where television cameras and electronic devices have long been banned, justices must fit data-packed smartphones into the contours of the Fourth Amendment’s guarantee against unreasonable searches and seizures.


The eventual outcome will clarify rules that were written long before phones wised up.


“A modern smartphone,” Stanford Law School Professor Jeffrey L. Fisher noted in a brief, “is a portal into our most sensitive and confidential affairs. The digital contents of such a device should not be subject to a fishing expedition.”


Fisher is representing Riley, the San Diego man whose case will be heard along with a separate flip-phone search challenge filed by a Boston-area native named Brima Wurie. The cases pose potentially far-reaching consequences for police and phone users alike.


Privacy advocates fear that a ruling against Riley and Wurie would render vulnerable the secrets of the 90 percent of U.S. adults who own cellphones, a growing number of which are outfitted like the various iPhone, Samsung or Android models.


Law enforcement officials, in turn, fear they might lose an invaluable investigative tool.


“A photograph, short video, letter, list of addresses or other material that could be properly seized from an arrestee’s pocket in paper form is not imbued with special First and Fourth Amendment protection simply because it is digitized and carried on a cellphone,” the California Attorney General’s Office wrote in a brief.


California Solicitor General Edward C. Dumont, whom President Barack Obama once nominated to the federal bench, will join with Obama’s Deputy Solicitor General Michael R. Dreeben in urging the court to give law enforcement leeway in searching smartphones.


The Riley and Wurie cases present different scenarios, and they’ll be argued back to back for an hour each Tuesday morning. Both rest on the warrantless searches of devices unimagined at the time the Fourth Amendment was ratified in 1791.


“I think the Riley case, in particular, is incredibly important,” Elizabeth B. Wydra, chief counsel of the liberal Constitutional Accountability Center, said Friday, “and it should be important for everyone who has a smartphone.” 


Riley was pulled over by a San Diego police officer on Aug. 22, 2009, prosecutors and defense attorneys agree, but they characterize him very differently. Fisher called Riley a “college student.” California officials called him “a member of a San Diego Blood gang.”


Police impounded Riley’s Lexus for his driving with a suspended license, and in a subsequent search found two guns. A police officer then scrolled through Riley’s unlocked phone, finding video clips of gang initiation fights, pictures of gang signs and clips of a red Oldsmobile allegedly used in an earlier gang shooting.


Convicted on charges that included attempted murder, Riley was sentenced to prison for 15 years to life. The 23-year-old is incarcerated at California’s Kern Valley State Prison.


In Wurie’s case, Boston police lacked a warrant when they checked the call log on his gray Verizon LG phone after busting him on drug and gun charges. Wurie was convicted in 2009 and is serving a 262-month prison term at a federal facility in New Hampshire.


The Riley case may prove the most consequential because it deals directly with the multimedia capacity of modern smartphones. An estimated 56 percent of U.S. adults were using smartphones last year, according to one survey.


“You’re talking about a treasure trove of personal information,” Wydra said, “the kind of information that we think of as deeply private.”


The attorneys general of 14 states, including Idaho, South Carolina and Mississippi, have weighed in on California’s behalf. Many more amicus briefs have been filed in support of the other side, by groups that range from the American Civil Liberties Union to the American Library Association.


“What Americans are reading is normally none of the government’s business,” the librarians said. “This case threatens that principle because it allows police officers to peer into the contents of a person’s entire personal library using a device that happens to be found on that person.”


The nine justices won’t be starting from scratch.


In a 1973 decision that involved the discovery of heroin inside a crumpled cigarette pack, the Supreme Court upheld the authority of police to thoroughly search someone who’s been arrested. There are limits, though. The searches are supposed to be for weapons or relevant evidence.


Moreover, in a 1969 decision involving the warrantless search of the house of a Santa Ana, Calif., man, the justices cautioned that police cannot “rummage at will among his papers in search of whatever will convict him.”


One possibility, among many, is the court might allow more lenient searches of phone call numbers in the Wurie case while imposing tighter restrictions on broader content searches in the Riley case. Justice Antonin Scalia, in particular, might prove a key swing vote among conservatives.



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