Court Ruling Opens Phones To Warrantless Searches

From Patriot News.


Cell phone users might think that their phones can’t be searched without a warrant any more than their homes can be. But one judge just gave cops engaging in warrantless cell phone searches a foot in the door.

Judge Richard Posner of the seventh circuit court of appeals ruled Wednesday (PDF here) that the question of cell phone searches isn’t whether law enforcement can open a phone and start snooping on its information without a warrant, but only how deep their warrantless search can go. In the appealed case, an Indiana man was arrested at a methamphetamine bust with one cell phone on his person and two more in his truck. Police turned on those phones and checked them for their numbers without obtaining a warrant, then used the numbers to file subpoenas to the carriers for the phones’ call histories. The searches went only as deep as gathering the phones’ numbers, but the defendant appealed his conviction based on what his lawyers argued was an unlawful search that generated evidence against him.

Posner disagreed. In his ruling, he cited another case United States vs. Robinson, which stated that a “container” on someone’s body at the time of arrest could be searched for evidence relevant to the crime. He acknowledged that rule might not allow the thorough search of a container that included other personal information, like a diary. But he wrote that

…opening  the  diary  found on the  suspect whom the police have arrested, to verify his  name and address and discover whether the diary contains  information relevant to the crime  for which he has been arrested, clearly is permissible; and what happened in this case was similar but even less intrusive, since a cell phone’s phone  number can be found without searching the phone’s contents, unless the phone is password protected—and on some cell phones even if it is.

Posner acknowledged that a deeper search of a cellphone could be considered intrusive. He cited an iPhone app called iCam that allows a user to access surveillance cameras in his own home, essentially linking a deeper cellphone search to a home search.

But he argued that simply checking a phone for its number doesn’t go far enough to raise questions of intrusions of privacy. The ruling includes a description of the number of touches it takes to obtain the number of an iPhone (two) and a BlackBerry (one, according to Posner’s count.) “We are quite a distance from the use of the iCam to view what is happening in the bedroom of the owner of the seized cell phone,” he writes.

In a far stranger argument, he adds that by merely by subscribing to a telephone service, “the user is deemed to surrender any privacy interest he may have had in his phone number,” given that the phone company knows it by default.

Posner intentionally leaves open the question of where the line can be drawn of an intrusive cellphone search. George Washington University Law professor Orin Kerr, writing at the Volokh Conspiracy, says that question may be complex enough to eventually reach the Supreme Court.

The take-away, I think, is that this is a confusing opinion that helps set up eventual Supreme Court review. The opinion deepens the split by adding a new approach to the mix and will help justify the Supreme Court eventually intervening. Supreme Court review may be a few years away, to be sure. Cell phone technology is changing quickly, and a rule for cell phones today might not make much sense tomorrow. So I suspect the Court will want to wait until the technology stabilizes a bit more before granting cert. But opinions like this one certainly help deepen the split.

With years to go before the issue is settled, privacy-conscious cellphone users would be wise to try a strategy that’s easier than fighting a Supreme Court battle: Password-protect your phone.

The full ruling is below.

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