Criminal Practice

The U.S. Supreme Court Takes on Cellphones and Privacy

, The Legal Intelligencer

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Business people on flying smartphones.
Business people on flying smartphones.

"At least six courts hold that the Fourth Amendment permits such searches, while at least three others hold that it does not," Jeffrey L. Fisher, a Stanford law professor representing David Riley, told the Washington Post.

In 2007, Brima Wurie was picked up in Massachusetts on suspicion of selling crack cocaine. Soon after arriving at the police station, officers noticed that one of Wurie's cellphones, a flip phone that a user must open to make calls, was repeatedly receiving calls from a number identified as "my house" on the phone's external screen.

The police typed the number for "my house" into an online directory and learned that it was associated with an address on Silver Street in South Boston. They went to the Silver Street location and found guns and drugs.

The evidence was used to convict Wurie and he was sentenced to 262 months in prison. The First Circuit reversed the lower court. The appeals court ruled that cellphone information is protected.

The other case is from California, where judges went the other way. The California Supreme Court ruled that police may search a cellphone when the phone is "immediately associated with [the arrestee's] person."

Police examined Riley's cellphone and found information that led them to believe he was in a gang. A photograph on the phone tied him to a shooting. Riley was convicted and sentenced to 15 years in prison.

These cases are a continuation of a line of cases wherein the Supreme Court has methodically taken on issues relating to the Fourth Amendment and evolving issues of technology. In the court's last term, a majority of justices ruled that in most cases, police officers must obtain a warrant before forcing a suspected drunken driver to take a blood test.

Justice Anthony M. Kennedy wrote in Missouri v. McNeely, 133 S.Ct. 832 (2013), that "always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment."

In a separate case, the Supreme Court also found that DNA testing is equivalent to fingerprinting. The high court approved Maryland's law that allows police to take DNA swabs at the time someone is arrested for a serious violent crime.

In Maryland v. King, 569 U.S. ___ (2013), the court held that "taking and analyzing a cheek swab of the arrestee's DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment."

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