91 percent of Americans own a mobile phone. Almost 50 percent own a tablet or ereader. Corporations have been legally determined to be 'people' and many of us live the better part of our lives on line.
Mobility and all if confers has come to define us in ways never imagined by the internet's progenitors, most of whom are still very much alive. We can only imagine what the drafters of the Constitution would have made of all this, given that absolutely none of them are still around.
As intrusive and intermingled with our so-called 'real' lives mobiles may be, the majesty of the law has not quite caught up with all of the varied ways in which we used these devices for purposes virtuous or nefarious. Among the most questions is whether officers of the law have the right to start thumbing through all of your social media, emails, texts and selfies - or whether they require a court-ordered warrant to do so.
We can chuckle at the image of agitated arresting officers being required to read someone their digital rights, but the joke may soon be on either us - or them. JL
David Kravets reports in Wired:
The Supreme Court agreed to decide the unsolved constitutional question of whether police may search, without warrants, the mobile phones of suspects they arrest
The justices did not immediately schedule a hearing in the most important digital rights issue the high court has decided to review this term.
The outcome is expected to shore up conflicting federal and state rulings, as well as varying state laws that are all over the map as mobile phones have become virtual extensions of ourselves, housing everything from email to instant-message chats to our papers and effects. The Pew Research Center’s Internet & American Life Project last year found that about 91 percent of adult Americans own a mobile phone. In 2012, there were 12,196,959 arrests in the United States, about one for every 2 seconds, according to the latest FBI data available.
The court accepted two cases, each with conflicting viewpoints on the topic. But in both cases, evidence uncovered during a warrantless search of a mobile phone provided the backbone of their prosecutions.
One appeal concerns a Boston area drug dealer sentenced to 22 years after being convicted of distributing crack cocaine, for being a felon in possession of a firearm and other charges following his 2007 arrest.
When suspect Brima Wurie was arrested after the police suspected he was selling drugs from his vehicle, the authorities took him to the station and reviewed calling logs on his “flip” phone. They did so, according to court records, after noticing that the phone was repeatedly receiving calls from “my house” as displayed on its external screen. The authorities opened the phone and saw on its wallpaper a picture of a woman with a baby.
The police traced the “my house” phone number to a different residence than the one to where Wurie initially claimed he was he living. The authorities suspected that, at that address, was a “hidden mother cache” of crack cocaine.
On the mailbox, they found Wurie’s name and saw through the apartment window a woman looking like the one on the flip phone’s wallpaper. After getting a search warrant, they discovered crack cocaine, marijuana, cash, a firearm and ammunition, according to court records.
The 1st U.S. Circuit Court of Appeals threw out evidence obtained from the search, which resulted in two of the three charges against Wurie being tossed. The court declared a “bright-line rule” and said “the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee’s person.”
The President Barack Obama administration appealed to the Supreme Court, maintaining that a warrant was not required.
The other appeal the justices said today they would review concerns a San Diego college student, David Riley, who was pulled over while driving a Lexus in 2009 for allegedly having expired tags. Local police at the scene learned Riley was driving with a suspended license, and impounded the vehicle.
San Diego Police policy was to document the contents inside seized vehicles. They discovered firearms under the hood, and arrested him for allegedly carrying concealed and loaded weapons.
Using precedent first established by the Supreme Court in 1914, the officers searched Riley incident to the arrest, a routine practice across America. They found a Samsung Instinct M800 smartphone. Police searched it twice, without warrants, once at the scene of arrest the other hours later at the station, according to the record.
The cops found evidence suggesting that Riley was a gang member. They also found a photo of him with a suspected gang member posing in front of a red Oldsmobile that the authorities believed was recently involved in a drive-by shooting.
The authorities subsequently performed a ballistics analysis from the weapons seized from Riley, tests suggesting the guns were fired in the drive-by shooting. After a hung jury and a second trial, and without eyewitnesses, a jury convicted Riley with shooting at an occupied vehicle, attempted murder and assault with a semiautomatic weapon.
At trial, the authorities showed the jury the picture of Riley and the Oldsmobile. He was convicted on all counts and sentenced to 15 years to life.
Riley appealed to the Supreme Court, claiming the fruits of the phone search should be suppressed because the authorities did not have a warrant. California’s top court had already sanctioned warrantless mobile phone searches upon arrest.
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