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. P Schulte

    The executive and legislative branches’ “ambitions” are “checked” by the SCOTUS. Who checks the ambition of the SCOTUS? The Founders through their literal words in the Constitution. Without implementation and enforcement; without the dominion of the definitions of the words of the Founders in the Preamble and Constitution, there is no America.

    The words of the Constitution do not change and the reading of that document cannot change. It cannot be objectively read 9 different ways.

    9 doctors will come to the one and only correct diagnosis and efficacious treatment protocol that preserves the patient’s life and health – the one and only. There is only one way to read the Preamble and Constitution. Only unanimous decisions by the SCOTUS are possible. You can get it right 9 ways. You can’t get it wrong 9 ways.

    9 justices should remain in the deliberation room until they reach unanimity. That’s what they’re paid for. They’re not paid to change the Preamble and Constitution, they’re paid to apply them. They’re paid to uphold and support the literal words of the Preamble and Constitution.

    The Supreme Court does NOT RULE Americans, it reads the Constitution and assures legislation and execution occurs precisely according to those words. The duties of the SCOTUS could not be simpler. Read the law; read the Constitution and compare the two.

    The Supreme Court does not get to “interpret.”

    The SCOTUS fails when it first IGNORES the intent of the Founders in the Preamble.

    The Preamble is the American context.

    The Constitution provides for governance within the parameters of the Preamble. Without the Preamble, there is no America.

    56 writers of the Preamble, Constitution and Bill of Rights agreed unanimously on the words written. The simple contemporary SCOTUS cannot presume that it is more intelligent or more devoted to America and its thesis. The simple contemporary SCOTUS should simply read the words and compare the with legislation and cases.

    The SCOTUS does not rule America.

    The SCOTUS must cease and desist “legislating from the bench” with impunity.

    It is time to put controls in place – penalties.

    1. John – I don’t know if you are aware of the phrase “Get a second opinion” that is very common with people who get bad news in the medical field. When I had cancer I had 8 different treatments available to me, my doctor was neutral. So, various doctors have various opinions, various lawyers have various opinions, various teachers have various opinions, etc.

  2. Frank,

    It seems like something reminiscent of the Marshall, Brennan and Blackmun court. I agree with the decision. I’m afraid that it’s going to lead to more pretext arrests so that they can search it as part of the property inventory.

    1. Keebler – just start putting a lock on your phone. They can inventory it, but it is still safe from a warrentless search.

  3. Dredd, Marbury v Madison, 5 U.S. 137 (1803).

    Thank you. I’ll do my homework.

    The question, however, is rhetorical. Of course, the words were written to be read and followed. The words do not vary. Precedent is accepted sloth (after a carpenter builds a house he doesn’t tell the next customer to go use the last one he built). There is not precedent, there are frivolous petitions.

    Let’s read the 4th and consider the words in your previous post which includes, “whether the Fourth Amendment permits the government to collect.”

    Off course, without doubt, definitively, unequivocally, inexorably and in perpetuity, does the 4th Amendment NOT permit the government to collect hundreds of millions of Americans’ phone records in bulk, indefinitely.

    “The right of the people to be secure…shall not be violated” PERIOD.

    I could curse. I won’t, but I could.

    This is precisely the latitude and authority the SCOTUS DOES NOT HAVE as it “exceeds its constitutional boundaries” and attempts to usurp power as agents of and in concert with its ideological and political benefactors and allies.

    This is repulsive and unhealthy when juxtaposed with the Constitution.

    “…has yet to decide???” It was decided by 55 men in 1789 and with an amendment in 1791. It’s over. The SCOTUS does not have the authority or power to decide anything other than whether the case comports with the words of the Constitution by definition, not interpretation, personal preference, compassion, etiquette, philosophy or any other arbitrary criteria.


    4th Amendment

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    From Dredd post:

    “This is from the ACLU Reply Brief in the Second Circuit (ACLU v Clapper) case:

    “A. Smith v. Maryland does not control this case.

    The Supreme Court has yet to decide the question presented by this case: whether the Fourth Amendment permits the government to collect hundreds of millions of Americans’ phone records in bulk, indefinitely.”

  4. Hayley Munguia over at Nate Silver’s 538 blog points out that police can get at much of what is on your cell phone by monitoring the cell towers or going to the cell service providers. Apparently most jurisdictions claim that monitoring cell towers requires no warrant.

    Of special interest are the Stingray devices that emulate cell towers and monitor cell phone traffic. Recent incidents demonstrate that both the federal government and the manufacturer are trying to prevent public discussion of the legal implications of these devices by preventing release of any information concerning their use.

    There is little wonder why LE would attempt to keep the public from becoming aware of the use of Stingray cell tower emulators. It is difficult to see how this technology could fail to sweep in the traffic (packet radio transmissions) from every cell phone in the vicinity of the cell tower making use of a warrant problematical at best and likely impossible.

  5. Today on Wolf Blitzer it might be good to discuss the Stingray device. That is where the controller of the device comes around to your cell phone area and sets out a signal and your phone connects. The Stingray then steals all of the information off the smartphone owned by the dumbschmuck. The government could have contractors do the thefts and then buy the stolen goods from the contractors. If you do not want your private information in the hands of others then do not have a Smartphone and do not take it to the Walmart parking lot on Sunday. While you are there JT could you ask Wolff why CNN demonized Glenn Greenwald and Edward Snowden? Whats in your wallet Wolff?

  6. Could this decision lead to police also needing a warrant to get the info from the black box in your car? Being I drive two 69 vehicles and do not own a cell phone, I don’t have to worry, but it is nice to see some liberties brought back to the people.

    1. Jim22 – there has always been a limited search of your vehicle to protect the officer. If you black box is locked, then I would posit yes, they would need an arrest and a warrant with cause to open the box.

      1. “If you black box is locked, then I would posit yes, they would need an arrest and a warrant with cause to open the box.”

        Black boxes in autos are closely related to the engine control computer system (sometimes ECM) and usually accessed through cables and electrical connectors.

        Does it make any difference that the information they contain is not available for inspection by humans without special equipment? Does it make any difference that black boxes are normally sealed with (at least) screws, and located in places not easily accessible to the driver or passengers?

        It seems to me that considering the location and tools required to access the black box that officer safety is simply not an issue. Officers don’t usually take apart your fuel injectors or transmission. The HVAC ducts in the dashboard are far more likely to contain weapons or contraband and are far more accessible to the driver and passengers.

        1. bfm – there are some things I admit I am ignorant of, auto mechanics is one of those. 🙂

  7. This post could have been entitled “Paperwork Prevails…” because that’s all it is. Your phone will be searched, especially if you’re in possession of drugs,but getting a warrant has become a hollow formality these days.

    Credit the Obama administration with shrewdly maneuvering the Court into this decision. The only way Scalia, let alone Thomas, would have held for the privacy protection of cellphones is if Obama came out strongly against it. That’s what I call legal jujitsu.

  8. Al Zheimers

    I read the Roberts decision in Wurie/Riley carefully. It surprised me. It is steeped in precedent and historical discussion of privacy. It is possible that the Court is morphing into a new direction on this issue.

    The Supreme Court is catching up to technology the NSA has been abusing for decades.

    In so doing, they may develop good privacy and 4th Amendment law which will stop technology from consuming the constitution any further.

    Beyond that, they may also make the military NSA disgorge the 4th Amendment etc. it has swallowed whole during maladjusted binge authoritarianism episodes.

  9. John

    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).

  10. From the ruling:

    . . . the Founders did not fight a revolution to gain the right to government agency protocols.

    Well, Congress has protected these protocols.
    The contempt by Congress = 7% approval rating.
    Yet, are you going to re-elect your Representative?
    For what, exactly… more defending and supporting bureaucratic protocols?

  11. 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, if they are capable, objective and not ideological and politically biased?

    Anything other than unanimous decisions must be malpractice and subject to penalty. 9 doctors or 9 dentists would not produce 9 different diagnoses and treatments for one set of symptoms related to one patient.

    The SCOTUS is not charged with legislating or executing, it is charged, simply, with assuring that the literal words of the Preamble/Constitution are supported and upheld. The SCOTUS is charged with applying the words of law as they are defined. The SCOTUS is not charged with interpreting or “legislating from the bench.”

    How is it possible that 9 different comprehensions exist for the same words in the same section of law? The Preamble and Constitution are comprised of words, the definitions of which don’t change. It is impossible for 9 people to read the words of those documents differently.

    The judicial branch exists to check the ambition of both the executive and legislative branches by imposing, without deviation, the words of those 55 Founders who wrote the Preamble and Constitution.

    The 55 were unanimous, so should the 9 be.

    1. John – If everyone agreed on Washington being President, shouldn’t they all have agreed on who the next President was going to be? Among other holes in your argument, the amendments were added afterwards and only 10 of the original 12 were accepted. We are up to 27 now.

  12. I read the Roberts decision in Wurie/Riley carefully. It surprised me. It is steeped in precedent and historical discussion of privacy. It is possible that the Court is morphing into a new direction on this issue. The Wurie decision by the First Circuit was upheld here and one must read it as well. Wurie cites the Boyd case from 1886, as does the Roberts Court here. This case will get a lot of scrutiny from lawyers and scholars around the country. Yesterday I would venture to say that only Dumbschmucks would carry a Smartphone with them. Today I will say that they are still schmucks but that they might be more protected than yesterday.

  13. Reblogged this on veritasusa and commented:
    Finally, a very RARE win in the fight against the growing decimation of our civil liberties by the Executive Branch and its minions. Police are now required to obtain a warrant to search a cell phone after arrest – UNLESS – you are stupid enough to give away the protection of your rights by consenting. Remember: Police are also fulky allowed to lie (such as: “We don’t need a warrant”) in order to obtain your consent to search – well, anything!

  14. “DOJ Whines That A Warrant To Search A Mobile Phone Makes It More Difficult To Catch Criminals”

    from the amending-the-Fourth-Amendment dept

    “The US government has entered its reply brief in the US vs. Wurie case and its argument in favor of warrantless searches of arrestees’ cell phones contains some truly terrible suppositions.”

  15. Statistical Tables – U.S. Supreme Court – U.S. Courts › … › Judicial Business 2012
    US Courts
    Statistical Tables – U.S. Supreme Court. print. Table A-1 Cases on Docket, Disposed of, and Remaining on Docket, 2007 Through 2011 …

  16. This is a very rare decision by the court in addressing 4th amendment law favoring the individual v. government/police interests.

    We members of the criminal defense bar receive a favorable ruling maybe 4-5 times over the last 5 years from over 50,000 petitions filed with the U.S. Supreme Court ( over 10,000 per year yielding 60-90 opinions annually).

  17. Excellent decision on the cell phone search. And can we hope the wording in this decision is setting us up for an NSA surveillance ruling that says the NSA/FBI/CIA, etc cannot do a blanket collection of cell phone data?

  18. Nick Spinelli

    All of these unanimous decisions doesn’t allow our host and fellow commenters engage in their favorite pastime, Nino bashing.
    Nino gave up his “Innuendo”, or Preparation H as it is called at CVS.

    He did so because he is into fickle fecal transplants now.

    It has improved his behavior.

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