Obama Administration Asks Supreme Court to Allow Warrantless Cell Phone Searches

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 techdirt.com

Considering what’s come out about the NSA’s domestic surveillance “accidents,” it almost makes you wonder why the government would bother. Surely this information is accessible by other means. In an apparent effort to be thorough in its dismantling of the Fourth Amendment, the administration has asked the Supreme Court to rule that this amendment provides for the warrantless search of cell phones.

Here are the details of the case being argued:

In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns.

The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man’s argument, ruling that the police should have gotten a warrant before accessing any information on the man’s phone.

Now, without getting into the arguments the government raises, not the least of which is that the courts are very divided on the subject, there’s the issue of the search itself and the circumstances surrounding it.

The path of least resistance is preferable for both the government and the affected law enforcement agencies. But what we’re dealing with here is persons already under arrest. They’re not going anywhere, unlike people who have only been “detained.” Why is it necessary to bypass the warrant process when you already have the suspect locked up? Even if something appears to be time-critical, there are ways around the process — like waking up a judge in the middle of the night or using any of the emergency exceptions built into these laws.

Is it really necessary to grant law enforcement the right to search through someone’s cell phone without a warrant? It’s certainly not a good idea, as cell phones today carry a lot more data than they did back in 2007, when the cell phone in question was a flip-phone that held little more than messages and phone numbers.

The government’s selection of this case to press the warrantless search issue is conveniently short-sighted, as Orin Kerr points out at the Volokh Conspiracy

[United States v.] Wurie involved a search in 2007, and the search of the phone was pretty narrow. The First Circuit described the phone as “gray Verizon LG phone,” and it noted that the phone had an “external caller ID screen on the front of the phone” and that had to be opened to be used. In other words, it wasn’t a so-called smartphone.

Kerr suggest the government would have been more helpful in setting precedent by taking a case involving phone hardware as we know it today, like Riley v. California, where an actual smartphone was searched without a warrant. The search in Wurie involved flipping open the phone and scrolling through the call log. The search in Riley was much more involved.

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