Court to rule on cellphone privacy
Moving into another conflict between technology and privacy, the Supreme Court agreed on Friday afternoon to rule on police authority to search the contents of a cellphone they take from an individual they have arrested. The Court accepted for review a state case and a federal case, involving differing versions of hand-held telephone capacity.
The Court rewrote the question in the state case — Riley v. California — to limit it to the constitutionality of the evidence actually used against the suspect at his trial. It granted without limitation the government appeal in the other case: United States v. Wurie.
The Court also agreed to hear a third case: Lane v. Franks. That tests whether a government agency may retaliate against a public employee “for truthful sworn testimony that was compelled by subpoena” and was not a part of the worker’s normal duties. All three of the new cases will be scheduled for oral argument in the Court’s April sitting, which begins on April 21, it is understood.
Both of the new cases on cellphone privacy involve the authority of police, who do not have a search warrant, to examine the data that is stored on a cellphone taken from a suspect at the time of arrest. The two cases span the advance in technology of cellphones: the government case, Wurie, involves the kind of device that is now considered old-fashioned — the simple flip phone. The Riley case involves the more sophisticated type of device, which functions literally as a hand-held computer, capable of containing a great deal more personal information.
The state case involves a San Diego man, David Leon Riley, convicted of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon. Riley was not arrested at the time of the shooting incident in August 2009; instead, he was arrested later, after he was stopped for driving with expired license plates. Police seized the cellphone he was carrying at the time of his arrest, and twice examined its contents, without a warrant.
The data turned up evidence identifying him as a gang member out to kill members of a rival gang. Other contents included a photo of him with a red car seen at the shooting site. Police were then able to trace calls, leading to a trail of evidence pointing to Riley as a participant in the shooting. No one positively identified him, but the data from the cellphone search was put before the jury, which convicted him of all three counts. He has been sentenced to fifteen years to life in prison.
Before the Court agreed to hear the Riley case, it had told lower courts to send in the full record of the case as it had unfolded. That was apparently done to find out just what evidence from his cellphone may have contributed to his conviction. The record included a photo from the cellphone of Riley standing in front of the red Oldsmobile supposedly involved in the shooting; he was standing next to one of the other men accused with him. Videos, also taken from the phone, showed street boxing matches involving others accused with Riley, with him in the background shouting comments about gang activity.
Riley’s petition had posed a general question about whether the Fourth Amendment allowed police without a warrant to search “the digital contents of an individual’s cellphone seized from the person at the time of arrest.” In granting review, the Court said it would only rule on this issue: “Whether evidence admitted at [his] trial was obtained in a search of [his] cellphone that violated [his] Fourth Amendment rights.”
The government case involves a South Boston man, Brima Wurie. In 2007, a police officer saw him make an apparent drug sale out of his car. The officer confronted the buyer, turning up two bags of crack cocaine. He partially identified his drug source.
Officers followed Wurie from the scene, and arrested him. He was then taken to a police station, where the officers retrieved two cellphones. One of the phones was receiving repeated calls from a number identified as Wurie’s home. The officers checked the phone’s call log. They traced him to his house. The officers deemed the fact that he had cellphones with him as an indication that he carried out drug dealing with the use of such a device.
He was convicted of being a felon who had a gun and ammunition, distributing crack cocaine, and possessing the crack with intent to distribute it He sought to block the use of the evidence taken from his cellphone, but that failed. He was convicted on all charges, and has been sentenced to 262 months in prison.
The U.S. Court of Appeals for the First Circuit struck down two counts of his conviction.
Although the two cases raise the same constitutional issue, the Court did not consolidate them for review, so presumably there will be separate briefing and argument on each. They probably would be argued one after the other, however. The Court did not expedite the briefing schedule, but they still are expected to be heard in April.
[Disclosure: The law firm of Goldstein & Russell, whose attorneys contribute to this blog in various capacities, represents Edward Lane, the petitioner in Lane v. Franks. The firm was also among the counsel to the petitioner in Riley v. California at the certiorari stage through the Stanford Law School Supreme Court Litigation Clinic, but it is not participating in the case at the merits stage.]