Talibah Chikwendu

I enjoy watching the Supremes. Realizing people might think I am talking about the singing ensemble (that I do like), I feel I should clarify that I am talking about the Supreme Court of the United States. It is a unique group and frankly, despite all the pundits who predict their actions, I still tend to believe that you never really know just what they might do.

Last week they surprised me, pleasantly I might add, when they issued a joint ruling on Riley v California and United States v Wurie. These cases deal with the search of cell phones. Chief Justice Roberts wrote the opinion for this ruling, with Associate Justice Alito writing a concurring opinion.

The Court ruled, in a unanimous vote, for the people and privacy, saying that barring exigent circumstances – which must be evaluated on a case-by-case basis by the judge hearing the case – information contained on a mobile phone cannot be viewed without a search warrant. Roberts’ opinion states, “Our cases have historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.”

The Court, in coming to this decision looked at three prior cases, all related to the application of Fourth Amendment guarantees against unreasonable search and seizure, privacy issues, and remedies suggested by the United States and the state of California. As these factors were deliberated and weighed the Court demonstrated its insight, recognizing the cell phone as a unique device, unlike anything available or conceived of when the available legal precedents or amendments were crafted.

What I find interesting, and surprising, is that all the Supremes came down on the side of protecting privacy, despite saying, “Privacy comes with a cost.” In the Court’s opinion it clarifies that the cell phone presents privacy concerns that exceed those related to looking in a wallet or purse. It points out that the shorthand “cell phone” is a misnomer, saying the devices could reasonably be called calendars, libraries, or minicomputers with phone capability. The storage capacity and ability to access content and information stored elsewhere, means the information available in the search of a cell phone far exceeds the privacy intrusion of the physical search allowed at the time of arrest.

The opinion states: “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house … Treating the cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen.”

It is interesting to note that, although not mentioned outright, the Court seriously considered Fifth Amendment protections against self-incrimination. In disallowing the Gant standard –”which permits searches of a car … where it is reasonable to believe that evidence of the crime of arrest might be found in the vehicle” – the Court recognizes that a preponderance of the data on the cell phone speaks for the owner in ways the laws says an individual cannot be compelled. The Court states, “In the cell phone context, however, it is reasonable to expect that incriminating information will be found on a phone regardless of when the crime occurred. Similarly in the vehicle context Gant restricts broad searches resulting from minor crimes such as traffic violations. That would not necessarily be true for cell phones. … Even an individual pulled over for something as basic as speeding might well have locational data dispositive of guilt on his phone. An individual pulled over for reckless driving might have evidence on the phone that shows whether he was texting while driving.’” As this points out, information passively collected and stored by the cell phone could create a clear map of activity that could act as testimony against self.

By the way, the Court inadvertently settled the question of whether or not an officer can confiscate and search your cell phone during a traffic stop or at the scene of an accident. He or she cannot confiscate without arresting you first and cannot search without a warrant.

In hearing these cases, the Court’s opinion could have resulted in giving law enforcement a pass to accessing our entire lives. Instead they shut down the loophole with a definitive statement, “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”

This is why I love watching the Supremes.

Talibah Chikwendu is a graduate student at McDaniel College and former executive editor for AFRO-American Newspapers. View her blog at http://fromcheapseats.blogspot.com/.


Talibah Chikwendu

Special to the AFRO