Smart Phones and Other Hang-Ups

You’re pulled over for driving 10 miles over the speed limit. That brightly-flowered shirt you are wearing suggests a little more flamboyance than the arresting officer would expect from an average driver. The officer asks for your license and registration, and then asks you to step out of the vehicle. You comply, and the officer leans in, noticing your smart phone charging from the cigarette lighter plug. He extracts the phone, tells you to stand quietly outside your car, and enters his own squad car where he proceeds to download everything on your phone into a police-controlled computer. He writes you the ticket, hands you back your cell phone and drives off on his merry way. How do you feel? All your contacts, calendar, medical info, pictures and other personal information are now in the hands of probing authorities.

Does it matter that smart phones are often the major links between drug dealers, their suppliers and their buyers? That organized crime often is “organized” over the wireless world of smart phones? Or that folks who sexually abuse children often record the offenses on their smart phones for later sexual gratification? And you were, after all, arrested (“taken into custody”), so doesn’t the officer have a basic right to search what he can easily perceive and secure?

90% of Americans have cell phones and 58% have smart phones. It’s just a part of modern American life. We depend on those devices, and increasingly, at least for personal matters, those smart phones are actually replacing laptops, tablets and desktops. We may have personal medical records, intimate photographs, and stuff that may be intensely private.

“While the Constitution ordinarily requires police to get a search warrant before looking at someone's personal possessions, the courts have granted an exception when a person is taken into custody… The U.S. Justice Department and the State of California argue that's justification enough for looking at the contents of a smart phone…

“[More] than 12 million people are arrested in the U.S. each year, most of them for minor offenses, such as drunk driving or getting in fights… Police also have authority to make arrests for fine-only infractions like driving without a seat belt, littering, or jaywalking.

“So, allowing police to search the text, photo, and video files on all of those smart phones would severely compromise personal privacy, says Jeffrey Fisher of Stanford Law School… ‘Such files hold exponentially greater amounts and types of sensitive personal information than any physical item’ an arrested person could carry… ‘The digital contents of a smart phone are categorically incapable of threatening officer safety. And once police have seized and secured a smart phone, there is no risk that the arrestee might destroy or alter its digital contents,’ Fisher argued in his court brief.” NBCNews.com, April 27^th.

Does the fact matter that some pretty nasty criminals have been convicted of serious crimes based on evidence secured from such casual stops? Are you picturing the police just following a suspect waiting for even the most minor traffic violation just to seize that phone? Are you okay with that? Are you okay with police administrators having copies of all your pictures and personal information? Picture them on their computers viewing your pictures and joking among themselves? Time for a judicial determination of how far police can go and under what circumstances.

“The Supreme Court [has heard oral arguments as to] two cases on the privacy issue, both involving criminal defendants who sought to have evidence taken from their phones thrown out on the grounds that the police did not first get a warrant. Lower courts came to opposite conclusions in their cases.

“In one, Fisher represents David Leon Riley, who was pulled over in San Diego five years ago for driving with an expired license. When police found guns in his car, they arrested him for carrying concealed weapons… Police then discovered pictures and videos on his Samsung smart phone which led to charges that he took part in violent gang-related crimes. His conviction was upheld.

“In the second case, Massachusetts man Brima Wurie was arrested for dealing drugs. After taking him into custody, police learned where he lived by looking at a log of calls on his cell phone. At his home, they found more drugs and a gun. His conviction was overturned when the evidence from the phone was thrown out.

“Lawyers for the two men argue that the courts have allowed police to search the possessions of people they arrest for two reasons — assuring officer safety and preventing the destruction of evidence. Neither interest, they say, is at stake with cell phones.” NBCNews.com. Two cases with very different results. The Supreme Court will tell us what those guidelines will be.

At oral arguments on April 29^th, “The Supreme Court struggled … to find the proper balance between law enforcement’s power to search cellphones seized during an arrest and an individual’s right not to reveal the vast amount of information that can be stored there… There did not seem to be majority support for the government’s position that there is no need for a warrant before police can examine the device. Nor did there seem to be enough votes for the other side’s position: that warrants are almost always required.” The Court seems challenged to find that balance. What do you think the rules should look like?

I’m Peter Dekom, and privacy does seem to be disappeared from every nook and cranny of our lives.