By Lawrence Hurley
WASHINGTON (Reuters) – The U.S. Supreme Court on Tuesday confronts the question of whether the increasing amount of deeply personal information kept on mobile devices means police officers need a warrant before they can search an arrested suspect’s cell phone.
In a case that pits expectations of privacy against the interests of the law enforcement community, the court will hear one-hour arguments in two cases.
The nine justices are weighing cases from California and Massachusetts arising from criminal prosecutions that used evidence obtained without a warrant from a judge.
Cell phones, initially used purely to make calls, now contain a wealth of personal information about the owner, including photographs, video and social media content. According to a 2013 report by the Pew Research Center, 91 percent of adult Americans have a cell phone, more than a half of them smartphones that can connect to the Internet.
Concerns about increasing government encroachment on personal privacy, especially in relation to electronic communications, has surged into the public eye over the last year in light of the disclosures made by former National Security Agency contractor Edward Snowden about government surveillance.
The cell phone cases arrive at the court two years after the court unanimously held that police need a warrant before they can put GPS tracking devices on vehicles.
That ruling was a signal that the court is concerned about how technology affects privacy rights, according to defense lawyer Gerry Morris, a member of the National Association of Criminal Defense Lawyers.
“You are starting to see much more awareness on the part of the court to the dangers to liberty that technology can pose,” he said in an interview.
In the cell phone cases, the legal question rests on whether the Fourth Amendment to the U.S. Constitution, which bars unreasonable searches, requires police following an arrest to get court approval before a cell phone can be searched.
The two defendants challenging their convictions, David Riley and Brima Wurie, say evidence found on their phones should not have been used as evidence at trial because the searches were conducted without warrants.
According to court precedent, police only have two valid reasons for searching items immediately upon arrest: officer safety and the need to secure evidence that could otherwise be easily discarded. In the past, police officers have not needed warrants to look at items such as wallets, calendars, address books and diaries.
Digital rights activists and criminal defense lawyers are among the groups supporting Riley and Wurie say cell phone data is not a safety risk and can, in most cases, be easily secured.
State and federal government lawyers have told the court that searching a cell phone is no different than warrantless searches of other items commonly found on a person at the time of arrest. The administration of President Barack Obama is backed by 16 states in the case.
“While technology has increased the amount of information an individual may practically choose to carry, neither the form nor the volume of the information at issue here provides a sound basis for redrawing clearly established Fourth Amendment lines,” Kamala Harris, the Democratic attorney general for California, said in court papers dismissing the need for a warrant.
She noted that potential evidence held on a cell phone could be vulnerable if not searched for immediately. Some phones, for example, might automatically delete some data after a certain time or allow for data to be deleted remotely.
In the first case, Riley was convicted of three charges relating to an August 2009 incident in San Diego in which shots were fired at an occupied vehicle.
Local prosecutors linked him to the crime in part due to a photograph police found on his smartphone that showed him posing in front of a car similar to one seen at the crime scene. Riley sought the high court’s review after his convictions were upheld by a state appeals court in California.
In the other case, the U.S. government appealed after an appeals court threw out two of three federal drugs and firearms counts on which Wurie had been convicted by a jury in Massachusetts.
The Boston-based 1st U.S. Circuit Court of Appeals said in a May 2013 ruling that police could not search Wurie’s phone without a warrant after the September 2007 arrest for suspected drug dealing.
A major difference between the cases is that Wurie’s phone, unlike Riley’s, is not a smartphone. Officers used the phone only to find a phone number that took them to Wurie’s house in Boston, where drugs, a gun and cash were found.
Rulings are expected by the end of June. The cases are Riley v. California, 13-132 and U.S. v. Wurie, 13-212.
(Reporting by Lawrence Hurley; Editing by Howard Goller and Cynthia Osterman)