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Warrantless Cellphone Searches: Are They Legal?

This is the question that came before the Supreme Court last week.

by
Jack Dunphy

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May 7, 2014 - 12:05 am
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Gentle reader, you are once again deputized in the struggle against villainy.  You have been assigned as Officer Dunphy’s partner in the investigation of an ongoing string of armed robberies committed by a pair of young men, both of whom have, in each of the several crimes, worn ski masks as they threatened their victims with being shot if they failed to turn over their property.  One of the crimes was captured on video, and though the masked men are not identifiable, we find the mannerisms displayed by one of them to be reminiscent of someone we have arrested in the past.  This person is a known gang member, and an examination of his prior arrest record reveals a propensity for the type of crimes we are investigating.

Armed with this information, we begin surveillance of this potential suspect.  We see him leave his house and drive off in a car, the description of which matches one provided by some of the robbery victims.  We follow the car until the man stops at a convenience store and goes inside, apparently to make a routine shopping visit rather than to rob the place.  While he is in the store, we take the opportunity to examine the car, looking through the windows at anything that might be in plain view.  And there on the backseat is a ski mask of the type worn by the armed robbers.  It is summertime; it has been some months since an innocent person might have had occasion to wear a such a ski mask.

We return to our unmarked car and watch the suspect emerge from the store with his purchases and drive off.  Confident that he is one of our armed robbers, we call in uniformed officers in a marked car to make a traffic stop.  He pulls over immediately and complies with directions to exit the car.  You and I then search the car, recovering not only the ski mask in plain view, but also a handgun hidden in an armrest.  The gun is of a similar type to those used in the string of robberies.  A further search of the car yields a notebook, written in which are notations indicating that the man we have stopped and a still unknown accomplice planned and carried out the robberies.

Also written in the notebook is the name of this accomplice.  We return to the police station and advise our suspect of his Miranda rights, which he waives before admitting to the crimes.  He also implicates his accomplice, whose name we discovered in the notebook.  We then prepare search warrants for the home of the man we have arrested and that of the accomplice.  Upon serving the warrants, we arrest the second robber and recover evidence linking both men to the crimes.

Not a bad day’s work for us, wouldn’t you say?  The only potential sticking point as we prepare for prosecution will be the question of whether we had probable cause to stop the first suspect based on our knowledge of him combined with our seeing the ski mask in his car as he did his shopping.  It’s an arguable point for a defense attorney, but I’m confident most judges would find our probable cause more than sufficient.  And with that stop and the evidence recovered from the car ruled admissible, there is little left for the second robber to challenge when he puts on his defense.  All of the evidence against him was recovered either through a valid warrantless search of the first robber’s car or through the search warrants engendered by it.  It’s the type of case that in nearly every instance results in a guilty plea after the search-and-seizure issues have been adjudicated.

But now let’s change things slightly.  Assume the facts of the scenario are the same up to the point the first robber is stopped.  When we search his car and find the ski mask and gun, we discover not a notebook with incriminating writing inside, but rather a cell phone, an examination of which yields irrefutable evidence that the man we have stopped and his accomplice planned and carried out the robberies we are investigating.  Because the evidence was contained in a cell phone rather than a notebook, should it now be ruled inadmissible because we have recovered it without a search warrant?

This is the question that came before the Supreme Court last week as two separate cases, Riley v. California and United States v. Wurie, came before it for oral argument.  In the first case, David Riley was pulled over in San Diego for driving a car with expired registration tags.  When officers discovered Riley’s driver’s license was suspended, they impounded the car as allowed under California law, and during an inventory search they found loaded guns concealed in the engine compartment.  Riley was arrested for possession of the guns, and when his cell phone was examined by a detective, evidence of his gang involvement was discovered.  Photographs on the phone also linked Riley to a recent gang shooting, for which he was found guilty and sentenced to fifteen years in prison.

In the companion case, police in Boston saw Brima Wurie involved in a drug transaction.  He was arrested and brought to a police station, at which time his cell phone rang.  The officers traced the source of the call to an address in Boston, then went to the house and knocked on the door.  When a woman answered the door, the officers smelled marijuana inside.  They obtained a search warrant for the house, and upon serving it discovered crack cocaine, a handgun, ammunition, and other evidence, all of which was introduced against Wurie.  He was convicted and sent to prison.

Comments are closed.

Top Rated Comments   
" searches of cell phones “can expose a wealth of personal detail that was inconceivable to the Supreme Court 40 years ago when it gave officers wide latitude to search people and their effects when taking them into custody. It’s time for the court to adapt its doctrine to new technology.”

Here is the crux of the problem.

The Supreme Court has no authority to "g[i]ve officers wide latitude to search people and their effects".

The Constitution is clear. No searches without a warrant. No warrant without probable cause.

No warrants without a "particular" description.

No fishing.

The Court has no business even having a "doctrine". Its job is to try cases under the Constitution, not re-interpret the Constitution to suit itself, OR to suit "a changing society".


"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

21 weeks ago
21 weeks ago Link To Comment
What is described by Mr. Dunphy are clear-cut cases of probable cause involving serious crimes, with obvious culpable activity occurring regardless of whatever additional information was gleaned from the phones. As such, they are irrelevant to the conversation.

Why? Because Cops are Notoriously Lazy, and WILL go for the lowest hanging fruit they can possibly find...and thats is why allowing phone searches without a Warrant is such a dangerous thing.

Like the “free air sniff” they allow their food-searching dogs when Probable Cause is insufficient to “search” a vehicle, they are always looking for the easiest way to “find something” they can document as “crime”, when no crime or even MILDLY suspicious activity is otherwise occurring….The Constitution by DESIGN makes it rather difficult for The State to Generate Revenue over the frivolous ( their preferred M.O.) and The Police, especially local one s in low-crime suburban areas, forever chafe at being denied such easy-pickings.

Possession of any data holding device is a suspicious activity IN AND OF ITSELF to The State. Its mere existence CREATES the desire to search it. Just like the NSA swallowing up everything we do electronically ,simply because they CAN, your Local Police have similar desires….

And the very sight of SOMETHING that records ANYTHING, presents a delicious lure of “potential revenue” they simply cannot resist. They visibly wince at the fact we have “stuff” in there they haven’t viewed, and they will make any excuse they need to gain access to it, period.

Skate –Board Kids in my neighborhood are always a Particular Target… whenever they are “caught” committing the Incredible Felony of putting their boards down too soon, and riding the 10 feet of sidewalk/handicap ramp that LEADS to the Skate Park entrance gate (because so many quadriplegics are running the half-pipe!?) the Police routinely grab their phones and look for “party pictures” of under-age drinking….

“Gimme your phone…who is this kid…how old is he…where does he live …Who is this girl…how old is she…why are THESE pictures of her locked…”

This is what they do, NOW.
Imagine what they will want to do, NEXT.

(show less)
21 weeks ago
21 weeks ago Link To Comment
If you have all the other evidence, present it before a judge and get a search warrant. These days, smart phones are our papers and effects.

When you have cops arresting fathers at school board meetings because they go over the two minute limit when objecting to Common Core, then you police have lost any sympathy.
21 weeks ago
21 weeks ago Link To Comment
All Comments   (30)
All Comments   (30)
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Adolph Hitler considered wiping the Jews off the Planet very reasonable. What could possibly go wrong with 0bama, Reid, Piglosi, McCain and Graham defining "reasonable" for everyone else??

Socialism is the message, Marxism is the strategy and Fascism is the goal...

Democrats lost America's first Civil War because they enslaved Black people. Democrats are going to lose America's second Civil War because they attempted to enslave everyone else...
20 weeks ago
20 weeks ago Link To Comment
You, Mr. Dunphy talked about the law. Show me the law that invalidated the Fourth Amendment and which thereby instituted warrantless searches. Reasonableness? If that was statutory language the court would hold it is too vague. Yet, for constitutional purposes it choses to rule rather liberally in favor of the police. Why would that be? What gave the court the power to define reasonableness in constitutional settings if they themselves almost always would find such language too vague in statutory settings? God-like-ness? Who judges what is reasonable? The jury who are the judge of the law and the facts. We citizens left it to ourselves to decide.
21 weeks ago
21 weeks ago Link To Comment
In the cases given the suspects were already detained so the searches were not time sensitive. Write the warrant, get the ADA and Judge out of bed (a plus) and nail down any loose ends. (If you live in someplace with the judiciary like California this is kind of a no brainer.)
21 weeks ago
21 weeks ago Link To Comment
you can read the notebook without needing passwords and in many cases just by looking through window if its lying there open.
this is not the same as a smartphone where you must do specific actions to view the info.
you don't like having to get a warrant because its not as easy as just assuming you can.
21 weeks ago
21 weeks ago Link To Comment
I think a personal cell phone comes under the term 'effects' much as do papers etc - reread the fourth amendment and get back to us if you have further questions. I know my cell phone is one of my 'effects'.

If this is the only way in which these perps could be nabbed for their crimes what the hell did you cops do before cell phones became common?

Do your job!

21 weeks ago
21 weeks ago Link To Comment
It does not look as if the two cases now before SCOTUS can provide a clear-cut opportunity to redefine "papers and effects" in the electronic information age. Both cases seem to be instances where the LEOs had reasonable probable cause, although SCOTUS could decide otherwise ... we'll see.

If not these two cases, then probably fairly soon, SCOTUS will have that opportunity. Of course, it would also help if Congress and the President would do their jobs and provide a reasonable statutory definition, and law enforcement guidelines on what constitutes a reasonable search of these devices.
21 weeks ago
21 weeks ago Link To Comment
Simple fact is this. Any search must be given by warrant or probably cause. This would be nothing more than another advancement to the erosion of our natural rights in America. They cannot just randomly collect information on citizenry.
Of course we just had a former justice state the Second Amendment's right to bear arms wasn't meant for citizenry and a few Harvard pundits declare the need for abolishment of the First Amendment ---so I am surprised at nothing.
The next step of classical tyranny as I predict in my own works--works based on an avid interest in history mind you, will be to declare a danger to the U.S. anyone who is a political enemy of that very tyranny. As Reid declared the Patriots at the Bundy ranch when he called them terrorists. When this becomes the mantra of the government at that point it will be time to water the tree that Jefferson planted long ago.

Charles Hurst. Author of THE SECOND FALL. An offbeat story of Armageddon. And creator of THE RUNNINGWOLF EZINE
21 weeks ago
21 weeks ago Link To Comment
I'm kinda, sorta OK with the plain view rule, though I know it can be and is abused. I'm much less OK with the Terry Search for anything other than weapons because of the vagaries of the "plain feel" rule. I'm very troubled with the admissibility of the proceeds of such searches, particularly when those proceeds aren't directly related to the probable cause for the stop, indicia of a crime, and the search, officer safety. OK, so there's some sense in an officer being able to pat down someone s/he's stopped to make sure the person isn't armed. But, a pipe doesn't feel like a pistol, a pipe isn't a threat to an officer's safety, and a pipe isn't necessarily an indicator of an illegal act. I don't have a problem with a gun found in a Terry Search being admissible if everything about the stop is OK, but I have a real problem with a pipe or a joint found in a Terry Search being admissible.
21 weeks ago
21 weeks ago Link To Comment
I’ve always chuckled at how one Tentacle Of The State will authorize the funds and apparatus to ensure the distribution of “free, clean needles”, while another Tentacle Of The State will prosecute you for possession of “drug paraphernalia”

“Dude, you GAVE this to me…remember?”

Make work and money laundering…is there anything of VALUE the State does?
21 weeks ago
21 weeks ago Link To Comment
" searches of cell phones “can expose a wealth of personal detail that was inconceivable to the Supreme Court 40 years ago when it gave officers wide latitude to search people and their effects when taking them into custody. It’s time for the court to adapt its doctrine to new technology.”

Here is the crux of the problem.

The Supreme Court has no authority to "g[i]ve officers wide latitude to search people and their effects".

The Constitution is clear. No searches without a warrant. No warrant without probable cause.

No warrants without a "particular" description.

No fishing.

The Court has no business even having a "doctrine". Its job is to try cases under the Constitution, not re-interpret the Constitution to suit itself, OR to suit "a changing society".


"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

21 weeks ago
21 weeks ago Link To Comment
The scenario of pursuing a violent criminal is a nice ideal. An easy strategy to take in a debate. It's always amusing/scary when law enforcement advocates inadvertently get in bed with starry eyed Marxists. Because that's what Officer Dunphy is doing here. Do not forget the old saying, "the road to hell is paved with good intentions". Even if it was a notebook rather than a cell phone, if it has not been directly tied to the crime, the officer really has no business perusing it. But say it was left OPEN to a descriptive page _in plain view_. Now the officer can claim he's stumbled upon additional, incriminating evidence. As an officer I would not want to take on that kind of legal debate. You risk blowing the case and making the arrest meaningless. Unless the robbery was executed using a LETHAL NOTEBOOK, or a witness described the suspect as "immediately making a journal entry in said described notebook just before he left the store" or some such, then the notebook is not (yet) tied to the investigation. That is the legal question. There are reasonable search and seizure laws, and officers should be extremely careful of them. Just impound the vehicle, lawful in CA when making a felony arrest of the driver as in the above scenario - if you have real PC to make an arrest, that is. Give the Robbery detectives and DA's office a chance to decide if and when to go through the notebook, rather than present them a stillborn case.

Anyone carrying a cell phone in public should keep it locked anyway. Or can officers force you to provide them the code now? I hope not. That smacks to me of violating the 5th Amendment, forcing you to provide access to what is otherwise unavailable, at risk of incriminating yourself. Kinda why we have Miranda rights.
21 weeks ago
21 weeks ago Link To Comment
What is described by Mr. Dunphy are clear-cut cases of probable cause involving serious crimes, with obvious culpable activity occurring regardless of whatever additional information was gleaned from the phones. As such, they are irrelevant to the conversation.

Why? Because Cops are Notoriously Lazy, and WILL go for the lowest hanging fruit they can possibly find...and thats is why allowing phone searches without a Warrant is such a dangerous thing.

Like the “free air sniff” they allow their food-searching dogs when Probable Cause is insufficient to “search” a vehicle, they are always looking for the easiest way to “find something” they can document as “crime”, when no crime or even MILDLY suspicious activity is otherwise occurring….The Constitution by DESIGN makes it rather difficult for The State to Generate Revenue over the frivolous ( their preferred M.O.) and The Police, especially local one s in low-crime suburban areas, forever chafe at being denied such easy-pickings.

Possession of any data holding device is a suspicious activity IN AND OF ITSELF to The State. Its mere existence CREATES the desire to search it. Just like the NSA swallowing up everything we do electronically ,simply because they CAN, your Local Police have similar desires….

And the very sight of SOMETHING that records ANYTHING, presents a delicious lure of “potential revenue” they simply cannot resist. They visibly wince at the fact we have “stuff” in there they haven’t viewed, and they will make any excuse they need to gain access to it, period.

Skate –Board Kids in my neighborhood are always a Particular Target… whenever they are “caught” committing the Incredible Felony of putting their boards down too soon, and riding the 10 feet of sidewalk/handicap ramp that LEADS to the Skate Park entrance gate (because so many quadriplegics are running the half-pipe!?) the Police routinely grab their phones and look for “party pictures” of under-age drinking….

“Gimme your phone…who is this kid…how old is he…where does he live …Who is this girl…how old is she…why are THESE pictures of her locked…”

This is what they do, NOW.
Imagine what they will want to do, NEXT.

(show less)
21 weeks ago
21 weeks ago Link To Comment
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