If you’re like one of 91 percent of Americans who own a cellphone, or the 81 percent who send and receive text messages on that cellphone, or the 60 percent that access the Internet, or the 52 percent that send or receive email on their phones, then the police would love to get their hands on your device.
Think about any random day. You make phone calls, which tells the phone companies where you are and who you’re talking to. You send text messages, which stores the content of your conversation. You take pictures, which are stored on your phone. And you download apps that have your bank account and credit card information, maybe even some medical records.
This is all information that, if viewed together, would give away your life story for any particular day or set of days.
So, if you’re arrested—and remember, almost anyone can be arrested; that doesn’t mean they’re actually guilty of anything—should the police have the authority to simply open your phone and look through every personal email, Twitter update, Facebook status, credit card statement and nude picture? For that matter, should the police have the authority to track your movements without a warrant? You know I’m going to say that the answer is “no.”
There are several reasons for this. It all starts at the beginning, with the Founding Fathers’ strong dislike for a practice of the British crown at the time called “general warrants” or “writs of assistance.” These writs were permanent search warrants which decreed that any place could be searched at any time at the whim of the holder. The colonists’ hatred for these general writs gave birth to the Fourth Amendment and its mandate of specific, particularized warrants and its protection of papers and effects from search without probable cause.
While there is an ongoing fight to ensure that the police can track you only after obtaining a warrant, that is something I won’t address here. The far greater challenge is to retain the warrant requirement for searches of cellphones.
While there is an almost universal preference for warrants, jurisprudence has carved out a few narrow exceptions: exigent circumstances, public safety and, as is relevant here, the search incident to arrest.
First, let’s get one thing out of the way: In State v. Boyd, the Connecticut Supreme Court affirmed a basic, but important, idea: we have a reasonable expectation of privacy in the contents of our cellphone. This is important, because without this, the police don’t need a warrant or probable cause to search the phone.
But what of the exception to the warrant requirement? In Chimel v. California, the U.S. Supreme Court held that an officer may search an arrestee’s immediate vicinity for “officer safety” and to prevent destruction of evidence. In these “search incident” cases, officers didn’t need a warrant or to justify their search, since it was a “reasonable” search. This was further refined in Arizona v. Gant, which stated that a search was not permitted when neither of those rationales apply.
There are two important cases pending in the U.S. Supreme Court that may resolve this issue. In United States v. Wurie and People v. Riley, the court will decide whether the search-incident exception applies to cellphones.
Here’s why it should not apply and why police should always have to get a warrant signed by a detached and neutral magistrate before anyone starts rummaging through the contents of your phone:
“[C]ellular phones have become a virtual biographer of a person’s daily activities. Data within a cell phone can log who a person talks to and when these conversations occurred. The data may include information that includes call logs, pictures, and contact list of known acquaintances or friends. Due to this potentiality of abundant data, a cell phone has become an indispensable piece of evidence in criminal cases.”
That is a remarkably frank conclusory statement by a police officer seeking a warrant to search the cellphone of a suspect. Another officer, in a recent interview with NPR, said: “I’m thinking there’s probably a wealth of information that just got tucked into your pocket, something that we’d like to get our hands on.”
The real reason why police want unfettered access to the phone is precisely the reason why they should not get it: it would be akin to a general warrant. “Rummaging” through your entire life without any restrictions on what they can look at would be like leaving your house open to inspection by law enforcement at any time on their whim.
It would enable police to conduct investigatory, exploratory searches for information that could potentially be exculpatory, regardless of whether they have any reason to believe it exists or any connection to the crime you’re arrested for, however remote.
Indeed, in recent weeks, several high courts have agreed: the supreme courts of Massachusetts, Texas and Washington state have all held that cellphones require greater protection than currently available.
Unfortunately, it doesn’t seem that there is any such case pending in any appellate court in Connecticut. But the Legislature is in session and while it’s considering the requirement of warrants for tracking data, it should see fit to cloak all citizens of Connecticut with greater protection by requiring warrants for cellphones in all circumstances and ensuring that only information relevant to a probable cause-backed investigation is admissible in court.
After all, it’s about time we live up to our name of the Constitution State.•