Privacy Prevails: Supreme Court Unanimously Requires Warrant To Search Cellphones

Supreme CourtIn a major (and increasingly rare) victory for privacy, the Supreme Court voted unanimously to require a warrant for police to search cellphones of arrested individuals. Chief Justice Roberts issued a consolidated opinion in two cases: Riley v. California, No. 13-132, and United States v. Wurie, No. 13-212. The second case is another loss for the Obama Administration which fought to strip citizens of privacy over their cellphone records — a consistent attack on privacy by this Administration. The Supreme Court also issued a major ruling in favor of cable companies in American Broadcasting Companies, Inc. v. Aereo, Inc., a decision that may not sit well with the many citizens who despise these companies. I will be discussing these decision on CNN with Wolf Blitzer today.

The Riley case involved David L. Riley, who was pulled over in San Diego in 2009 for having an expired auto registration. A search of the car found guns and police searched his cellphone and found what they alleged were street gang contacts and was used to connect him to a shooting. He was sentenced to 15 years in prison despite the absence of a warrant on the cellphone. The police found loaded guns in his car and, on inspecting Mr. Riley’s smartphone, entries they associated with a street gang.

The second case involved Brima Wurie, who was arrested in 2007 in Boston and charged with gun and drug crimes. His phone was also searched without his permission or a warrant. Unlike the California state courts that upheld the Riley searches, the First Circuit correctly threw out the evidence found on Mr. Wurie’s phone.

The Administration pushed to strip privacy protections from citizens, which would have opened up the most commonly held electronic records for all citizens and blow a hole through American privacy law. However, the Administration succeeded in united a normally divided court with this extreme argument.

Chief Justice Roberts noted the new reliance on cell phones for data storage:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras,video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity.

It is important to recognize however that this only requires a warrant which is uniformly granted. However, it requires at least an independent judgment on the probable cause for the search. Roberts noted:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost. Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.

Here is the decision: Riley Opinion

In Aereo, the Supreme Court dealt a deadly blow to Internet services that allow customers to watch broadcast TV programs on mobile devices. Aereo was launched a year ago and gave customers the ability to watch over-the-air TV programs on a smartphone, tablet, or computers for as little as $8 a month. The cable companies balked at the loss of control and revenue. The Court ruled that Aereo was violating federal copyright law by retransmitting copyrighted programs without paying a copyright fee.

Justice Stephen Breyer, writing for the majority, has become the Court’s guru on all things copyrights or trademarks in recent years. He is generally unpopular for past rulings by the IP community but this one went in favor of the copyright claims. While Breyer stressed that this was a limited decision that will not “discourage the emergence or use of different kinds of technologies,” the remand left little room for Aereo or other companies that might follow it. The case reinforces copyright claims over the public performance of copyrighted works.

Here is that opinion: the Aearo Opinion

58 thoughts on “Privacy Prevails: Supreme Court Unanimously Requires Warrant To Search Cellphones”

  1. PCS,

    That is precisely the problem. The Preamble is the American Context, America’s foundation.

    The Constitution provides for governance within the parameters of the Preamble.

    The Preamble sets forth the items UNDERSTOOD to be fact. Something akin to rights coming from God, not the government.

    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”




    “The Preamble of the Constitution is an introductory, succinct statement of the principles at work in the full text.” Cornell Law

    Those principles were freedom through self-reliance and government limited to security and infrastructure as the “blessings of liberty” were all endeavors, businesses and industries conducted in the free markets of the private sector without governmental interference, including the education, healthcare and charity industries, with only the promotion of the general welfare and distinctly and deliberately not the funding of direct payments of individual welfare (i.e. no redistribution in any form for any purpose from food stamps and social services to rent control, public school/college and affirmative action).

    If you order a pizza, you don’t describe every last molecule in it. You say pizza and everyone understands – everyone knows.

    The Founders told us what they Established, Insured, Provided, Promoted and Secured.

    Those are verbs, action words. The Founders told us what they did. They deliberately omitted what they didn’t do and what they didn’t intend. They did not have to tell us what they did not do. They fact that they did not tell us something; anything, means they did not intend it and it was not in their thesis – it was not part of America.

    The Preamble was accepted in the first American century and ignored in the second.

    The SCOTUS is the singular American failure and its first failure was to ignore the American foundation and context, the Preamble.

  2. PCS,

    I think people have a problem with America because they give no weight to the Preamble.

    *** Preamble 3. a preliminary or introductory FACT or circumstance. ******

    If it were binding, government would be limited to security and infrastructure which would make the SCOTUS’s job much easier. What the Founders thought everyone UNDERSTOOD is in the Preamble. The Constitution is much less complex if the intent of the Founders as expressed in the Preamble is accepted as foundational and immutable.

    The Constitution has been hijacked and corrupted because the underpinnings have been eroded. The Preamble was understood in the first century and ignored it the second. The Founders told us in the Preamble that they only promoted general welfare; they absolutely did not fund individual welfare. No one even suggested that in the first century – no one could oppose it in the second. Charity, including orphanages, was understood in the first century, direct monetary payments were mandated in the second. Self-reliance was axiomatic in the first century, dependence on government rewrote the physical law of self-perpetuation it in the second.

    The SCOTUS is another exercise in politics, another vote, when it was intended to be the Constitution and the administration thereof.

    The Constitution limited government and now there is no limit on government. The government can do and be anything it wants. The government has come full circle. America began with the overthrow of a tyrannical and oppressive monarch. Now America is right back to being ruled by a tyrannical and oppressive monarch in the form of the dictatorship of the proletariat. The right to private property is gone as the government takes money from one man to give it to another.

    It is past time for renaissance of the Preamble and Constitution.


    pre•am•ble (ˈpriˌæm bəl, priˈæm-)

    1. an introductory statement; preface.

    2. the introductory part of a statute, deed, constitution, or other document, stating the intent of what follows.

    3. a preliminary or introductory fact or circumstance.

    1. John – SCOTUS has usually held that that the preamble has no force.

  3. DREDD, please help me out here. How did you apply Marbury v Madison to the question below?


    If 55 people wrote and unanimously agreed on the Preamble and Constitution, how is it possible for 9 justices to read and variously disagree on the definitions of the words in those documents …
    Marbury v Madison, 5 U.S. 137 (1803).”

  4. PCS, how about the poor overburdened SCOTUS justices refer unsolvable cases, like cancer, back to the legislative branch for legislative modification.

    For example, the SCOTUS issues a unanimous decision that the justices can’t read the law. It goes back to the legislative branch. The legislative clarifies and communicates it back to the SCOTUS who then can read the Constitution and the justices can all read it the same way and VOILA, it results in a new, unanimous decision.

    That would put an end to the SCOTUS “interpreting” the Constitution subjectively, based on ideology and political bias, and “legislating from the bench.”

    There is no way that the Founders wrote the Constitution, for example, for Obama to tale over the entire healthcare industry no matter what convoluted, circuitous, incoherent verbal meandering the executive and judicial branches can produce on the subject.

    1. John – on occasion SCOTUS has noted that the solution to the problem lay with the legislature not with them.

  5. PCS, a point well taken.

    I think the anomaly here is not the Constitution but cancer.

    Cancer is indecipherable.

    The Constitution is legible and intelligible.

    It says “free speech” without qualification so any law or decision restricting any aspect or portion of free speech is unconstitutional. Period. Same with the right to privacy, including “papers” or stone tablets or e-mails or computer files or anything you’ve written that you have kept private and haven’t released to the public.

    I think doctors are unanimous regarding cancer

    – they don’t know what to do

    – they try everything.

    Nonetheless, I’d wager that doctors would turn out to be unanimous in offering every treatment available to every cancer patient. I’ve heard it said for women radical mastectomy is optional. Of course it isn’t when presented as “your life or your breasts.”

    I’m not sure this is a effective analogy.

    1. anonymous – I would contend that Stingray would be a warrantless search, but since they would not admit they had done it, you would never know.

      1. ” I would contend that Stingray would be a warrantless search, but since they would not admit they had done it, you would never know.”

        I am no cell tower tech, but I don’t see how the technology can avoid sweeping in data from all cell phones that would be using the cell tower in a specific area. They can filter the data so that they only examine or save data from a specific phone. But that does not get around the fact that if you cell phone is trying the use the cell tower that the stingray is emulating then initially your data will be captured by the stingray just like the data from the phone of the person actually under investigation.

        It is as though to search your apartment they had to enter every apartment in the building to figure which one belonged to you. And then in order to remain in and search your apartment they had to post a lookout in every other apartment.

        Stingray technology presents real problems for the concept of searches that proceed on the basis of a warrant for a particular person or particular kind of object.

        I am guessing that the fact that stingray searches can be limited only after data about every cell phone in the area is collect creates problems related to warrants that make the state desperate to prevent the public form learning about stingray use.

Comments are closed.