Technology moves so fast that it’s tough to keep up. That’s especially true for the legal system, which is lagging behind new developments that throw wrenches into the interpretations and applications of existing laws. 3D printing is one example of a technology that has thrown copyright and intellectual property issues for a loop, not to mention laws regarding the possession of 3D-printed items, such as guns. We’ll be seeing a lot of court cases about this stuff moving forward, but right now the Supreme Court is dealing with Fourth Amendment search and seizure concerns with regards to smartphones and other devices.
The Supreme Court will consider two cases today concerning searching electronic devices without a warrant. In the cases, the search of electronics owned by people who had been arrested resulted in the obtaining of information that led to criminal prosecution, and the information gathered and used in that prosecution wasn’t related to the original cause for the arrests.
Obama’s administration and state prosecutors want police officers to be able to search the devices of people who have been arrested during or directly after their arrest, but the question is whether doing so violates the Fourth Amendment that protects against unreasonable search and seizure. Given that cell phones and other devices have become ubiquitous parts of almost everyone’s daily lives, it could be argued that searching them or accessing call logs, data hosted in the cloud, and other information on the devices, such as pictures, is tantamount to searching someone’s home, car, or person, all of which are protected by the Fourth Amendment (except in certain situations).
One of the tricky aspects of the case is that police officers aren’t just looking to search phones on an arrestee at the time of arrest — they’re looking to gain access to all of the person’s electronic devices if they are “in proximity to the incident of the arrest.” The doctrine is called SITA (Search Incident to Arrest), which in its broadest interpretation grants access to data on cell phones, tablets, and computers. The question is whether it should be so broadly interpreted.
One case before the Supreme Court involves a Boston drug dealer who was sentenced to 22 years in prison back in 2007. The dealer was arrested on suspicions that he was dealing drugs from his car, and upon arrest the police took the dealer’s smartphone and went through his call history. They saw a number of calls from “my house,” so they traced the number, thinking it might be where the big stash was kept. They also learned that the address of “my house” wasn’t the same home address that the dealer gave them upon arrest. When the police went to “my house,” they saw the dealer’s name on the mailbox and a woman in the house that matched the phone’s wallpaper picture. That information led the police to obtain a search warrant, and when they searched “my house” they found drugs and firearms. The dealer successfully challenged the arrest, arguing that existing Fourth Amendment precedents didn’t apply to electronic devices, and the Court of Appeals agreed, which resulted in most of the charges being dismissed. The government is taking this case to the Supreme Court because they want to set a precedent that allows for police to use “an investigative tool that is increasingly important for preserving evidence of serious crimes.”
The other case involves a San Diego driver who was pulled over in 2009 for expired plates and driving on a suspended license. The police found firearms when they searched the car, and they then searched his smartphone at the scene, and again at the station. A picture on the phone suggested the driver’s affiliation with a gang suspected to be involved in an earlier shooting. It turns out that one of the firearms obtained from the car was used in that shooting — something the officers wouldn’t have known without access to the phone. The driver was convicted and is now appealing.
It does seem that the Supreme Court would want police to be able to use pertinent information gathered from mobile phones — perhaps the bigger question is whether that’s legal without a warrant. The issue seems to have been settled, at least for now, when it comes to border crossings — DHS can confiscate electronic devices pretty much if and when they feel like it.
Too bad we don’t have a sixth season of The Wire to help us navigate such questions.