U.S. court restricts cellphone searches

Police generally need a warrant, echoing decision rendered in B.C.

WASHINGTON — In a strong defence of digital age privacy, a unanimous U.S. Supreme Court ruled Wednesday that police may not generally search the cellphones of people they arrest without first getting search warrants.

Cellphones are powerful devices unlike anything else police may find on someone they arrest, Chief Justice John Roberts said for the court. Because the phones contain so much information, police must get a warrant before looking through them, Roberts said.

“Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life,” Roberts said.

The message to police about what they should do before rummaging through a cellphone’s contents following an arrest is simple. “Get a warrant,” Roberts said.

A similar decision was rendered by B.C.’s top court last week. The B.C. Court of Appeal made it clear that police officers should not download the content of cellphones without a search warrant, Victoria lawyer Michael Mulligan said.

The case, Regina versus Mann, concerned a kidnapping in Vancouver where police seized two BlackBerries from the suspects incidental to their lawful arrests. After keeping them for a while, the officers downloaded the phones’ contents without getting a search warrant, Mulligan said.

“The issue was should they have done that or should they have gotten a warrant. The B.C. Court of Appeal found they shouldn’t have done that,” he said. “It means the power to search, incidental to a lawful arrest, doesn’t allow police to download the content of people’s phones.”

If the police have lawful grounds to arrest you, they are allowed to search you and your effects for either evidence of the offence for which they are arresting you, or for officer safety, such as making sure you don’t have a knife in your pocket, Mulligan said.

In Washington, the U.S. Supreme Court chose not to extend earlier rulings that allow police to empty a suspect’s pockets and examine whatever they find to ensure officers’ safety and prevent the destruction of evidence.

In the cases decided Wednesday, one defendant carried a smartphone, while the other carried an older flip phone.

Chief Justice Roberts said the comparison to packages of cigarettes and other items that were at issue in the earlier cases is not apt. A ride on horseback and a flight to the moon both “are ways of getting from point A to point B, but little else justifies lumping them together,” he said. Authorities concerned about destruction of evidence can take steps to prevent the remote erasure of a phone’s contents or the activation of encryption, Roberts said.

One exception to the warrant requirement left open by the decision is a case in which officers reasonably fear for their safety or the lives of others.

The two cases arose after arrests in San Diego and Boston.

In San Diego, police found indications of gang membership when they looked through defendant David Leon Riley’s Samsung smartphone. Prosecutors used video and photographs found on the smartphone to persuade a jury to convict Riley of attempted murder and other charges. California courts rejected Riley’s efforts to throw out the evidence and upheld the convictions.

The court ordered the California Supreme Court to take a new look at Riley’s case.

In Boston, a federal appeals court ruled that police must have a warrant before searching arrestees’ cellphones.

Police arrested Brima Wurie on suspicion of selling crack cocaine, checked the call log on his flip phone and used that information to determine where he lived.

When they searched Wurie’s home and had a warrant, they found crack, marijuana, a gun and ammunition. The evidence led to a conviction and a prison term of more than 20 years.

The appeals court ruled for Wurie, but left in place a drug conviction for selling cocaine near a school that did not depend on the tainted evidence. That conviction also carried a 20-year sentence.

Times Colonist – June 26, 2014 – Mark Sherman – With file from Louise Dickson, Times Colonist