• Good News? Maybe. Supreme Court Says Cell Phone Searches Need Warrants

    July 1, 2014

    Tags: , ,
    Posted in: Democracy, Post-Constitution America



    There are signs of hope that the Supreme Court will return to its check and balance role of the Constitutional era.

    One such sign, directly addressing the Fourth Amendment (the Court also just issued a ruling determining the procedures for challenging one’s inclusion in the No-Fly list are unconstitutional, another hopeful sign) is a recent opinion that the police cannot search the contents of an arrestee’s cell phone without a warrant.

    Good news? Maybe.

    The Supreme Court Recognizes Tech Affects the Fourth Amendment

    Prior to this decision in the case of Riley v. California by the Supreme Court on June 25, 2014, law enforcement held that if they arrested someone, say for a simple traffic offense, they had the right to examine the full contents of his or her cell phone– call lists, photos, social media, contact, whatever was on the device, what one writer called a “montage of the user’s life.” Police traditionally have searched physical objects they find on an arrestee without a warrant, typically with the rationale that such searches were for the protection of the officers (Got a gun in that backpack?) In the case that was before the Court, a traffic stop for one man ended up with him in jail for other alleged crimes based on the contents of his phone. The Court combined the Riley case with a similar one in its decision.

    The Court acknowledged that cell phones today represent far more than a “physical object.” The information they hold is a portrait of someone’s life, the same as a closet at home, or a computer sitting on your desk. Searches of those locations almost always require a warrant, and now, so will searches of your cell phone if you are arrested. An exception exists for “exigent circumstances,” such as the infamous ticking time bomb scenario where a terrorist with knowledge of an imminent attack is arrested. An legitimate exigent circumstance might also include a child kidnapper caught running a red light, whose phone might reveal the location of his victim. Common sense, if not abused by the cops.

    (As background, the Supreme Court flirted with these issues about two years ago in ruling against warrantless use of GPS tracking devices by the police. In U.S. v. Jones the Court stated “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations” and thus violates a person’s expectation of privacy.)

    Bad News

    Does this matter when talking about the NSA’s and the FBI’s technological dragnet? Maybe. Some suggest that law enforcement will work around the new restrictions by seeking perfunctory, expedited warrants automatically for each arrest, or through the use of technologies such as Stingray, which can electronically gather cell conversations without warrant. Stingray can also be used to track a person’s movements without a warrant, negating the old-school GPS devices the Supreme Court declared require a warrant.

    Good News

    On the positive side, while the Supreme Court decision on cell phone searches applies directly to street-level law enforcement, it does suggest an evolution within the Court that recognizes the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.

    The hope now is that future Court cases will take the “new” concept that using a cell phone creates a reasonable expectation of privacy, and enlarge that to cover more of Americans’ digital lives. Can you hear us now NSA?




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    Copyright © 2014. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity. Follow me on Twitter!

  • Recent Comments

    • Rich Bauer said...

      1

      The Dirty Diaper Bomber aside, I suspect the Supremes would have sung a different tune if an actual terrorist attack had been prevented by the “double-secret probation” NO FLY LIST. The Gov uses it to stop threats like this:

      http://www.dailykos.com/story/2006/01/05/176207/-Author-of-Bush-s-Brain-Put-On-No-Fly-list

      07/1/14 11:09 AM | Comment Link

    • Rich Bauer said...

      2

      07/1/14 11:21 AM | Comment Link

    • pitchfork said...

      3

      quote”Some suggest that law enforcement will work around the new restrictions by seeking perfunctory, expedited warrants automatically for each arrest, or through the use of technologies such as Stingray…”unquote

      Those “some” would be dead on. And should the ACLU get a little uppity when local LEO’s use them and get caught, the US MARSHALS will simply deputize a local LEO, thereby “federalize” any documentation of their use, preventing anyone from using a FOIA request on local LEO’s.

      http://boingboing.net/2014/06/04/us-marshals-raid-florida-cops.html

      That’s ok though..they got nothin to hide. Right? right.

      These fuckers never cease to amaze me. Btw, look at the US Marshals in that picture. If that doesn’t convince someone that the Posse Commitatus Act means ZERO, nothing will.

      07/1/14 12:02 PM | Comment Link

    • pitchfork said...

      4

      http://www.tomdispatch.com/post/175827/tomgram%3A_peter_van_buren,_no-fly-list_america/

      Just curious. After all you’ve written..are you still able to get on a plane Peter..regardless of the recent court ruling on the no fly list?

      07/1/14 12:36 PM | Comment Link

    • wemeantwell said...

      5

      I never “made it” to the no-fly list, though I was apparently on the “selectee list” for awhile during and after my State Dept fight. I was pulled out of line and “randomly” searched most trips. That seems to have tapered off in the last year or so. Likely replaced by much more efficient electronic monitoring.

      07/1/14 12:41 PM | Comment Link

    • Rich Bauer said...

      6

      “That seems to have tapered off in the last year or so.”

      If you would shave your legs, maybe they would.

      http://www.youtube.com/watch?v=ptGal9T45Xs

      07/1/14 2:15 PM | Comment Link

    • Kyzl Orda said...

      7

      It’s par for the course isn’t it, putting whistelblowers on search lists and allowing death threats to be made against State employees trying to do their job.

      It’s official harassment.

      There are many State employees who are professional and take their job seriously. The NY Times ran an article the day before yesterday, somewhat buried, on the Blackwater Nissour Square case. This article had some interesting behind-the-scenes look at two State investigators who were doing their job and raised concerns about Blackwater operations in Iraq that were stifled, covered up, and involved State and FBI employees (the not-so-conscientious ones but the order-followers) being asked to pick up bullet cartridges and other crime scene evidence after the Nisour Square shooting.

      The State Department ‘leadership’ was actively involved in hindering the work of their own investigators. The same names of the official hinders reappeared with recent scandals like the ambasador to Belgium who was accused of soliciting sex with kids, a case also stifled by — the same bureaucrats at State.

      The NY Times story, linked below, outlines that one of the State investigators doing his job was threatened by a Blackwater manager in Iraq and ordered with his colleague by the US embassy (back in 2007 for the context) to leave Iraq the very next day. The State investigator reported that:

      “… Mr. Carroll [the Blackwater manager in Iraq – my insertion here] said “that he could kill me at that very moment and no one could or would do anything about it as we were in Iraq,” Mr. Richter wrote in a memo to senior State Department officials in Washington….

      “Senior State Department officials”

      “…On Oct. 5, 2007, just as the State Department and Blackwater were being rocked by scandal in the aftermath of Nisour Square, State Department officials finally responded to Mr. Richter’s August warning about Blackwater. They took statements from Mr. Richter and Mr. Thomas about their accusations of a threat by Mr. Carroll, but took no further action.

      Condoleezza Rice, then the secretary of state, named a special panel to examine the Nisour Square episode and recommend reforms, but the panel never interviewed Mr. Richter or Mr. Thomas.

      Patrick Kennedy, the State Department official who led the special panel, told reporters on Oct. 23, 2007, that the panel had not found any communications from the embassy in Baghdad before the Nisour Square shooting that raised concerns about contractor conduct.

      “We interviewed a large number of individuals,” Mr. Kennedy said. “We did not find any, I think, significant pattern of incidents that had not — that the embassy had suppressed in any way.” ”

      Right. Another “Hutton-style” inquiry that would make ex UK PM Tony Blair proud.

      There are some excellent senior State officials, but there are some who fail to serve their country right. The system needs reform — it is outdated, stodgey, ineffecient, corrupt, broken, and firmly rooted in medieval times.

      Some of us voted for the later administration, wanting real change and reform. Instead we have gotten more of the same. The prior Secretary to our current one was more interested in globe-trotting and collecting awards while her staff beat back any whistleblowing cases because they didnt know how to cope.

      There still is an opportunity left, let’s be positive, right? The current Secretary could still reform the processes and usher in a better and transparent bureaucracy, hopefully ushering the Department into the 1800s. It’s something, right??

      http://www.nytimes.com/2014/06/30/us/before-shooting-in-iraq-warning-on-blackwater.html?action=click&contentCollection=Middle%20East&module=MostEmailed&version=Full&region=Marginalia&src=me&pgtype=article

      07/1/14 2:38 PM | Comment Link

    • pitchfork said...

      8

      quote “The system needs reform — it is outdated, stodgey, ineffecient, corrupt, broken, and firmly rooted in medieval times.”unquote
      (snip)
      “….The current Secretary could still reform the processes and usher in a better and transparent bureaucracy, hopefully ushering the Department into the 1800s.”unquote

      Hahahahahahaha! Yeah, but then they’d have to start using the telegraph. #technology challenged

      telegraph twit..

      Kerry @topdogshithead
      Must hurry. stop. Stmwhler lvs 5 min stop
      Will 4ward trnscrpt of mtng with Iraqi dmba** stop Stll wnts run Iraq stop what to do with #CIA rnnng wpns @ISIS stop dmbfnded @stupidity stop no time 2 xplain stop
      Mrs suspects #somethingup w us stop Stop contact B4 gay trbl stop

      youbetcha @crrptDOS

      07/1/14 4:21 PM | Comment Link

    • Rich Bauer said...

      9

      Translation: I will cover-up your incompetence so you cover-up mine.

      07/2/14 3:12 PM | Comment Link

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