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Privacy v. Technology

Posted By Arnold Ahlert On March 9, 2012 @ 12:09 am In Daily Mailer,FrontPage | 6 Comments

The expanding conflict between constitutional rights and technological advances has taken another turn in Texas. On February 29th, the U.S. Court of Appeals for the 7th Circuit ruled it is now legal for police to search cell phones without a warrant. The United States of  America v. Abel Flores-Lopez arises from the original Indiana case involving Mr. Flores-Lopez, who was arrested for allegedly selling methamphetamine. After being convicted and sentenced to 10 years in prison, Flores-Lopez argued that police had no right to search his cell phone without a warrant. The court disagreed, contending that the invasion of his privacy was not severe enough to be protected by the Fourth Amendment’s ban on unreasonable searches.

This “lack of severity” was due to the fact that the search revealed only the telephone number of the arrestee’s seized cellphone. “If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number,” Judge Richard Posner wrote for the three-judge panel. “If allowed to leaf through a pocket address book, as they are…they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone.”

Extrapolating on this cell phone-equals-diary analogy, the judge further contended that both were “containers,” as “any object capable of holding another object…an object that can contain anything else, including data, is a container…And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don’t suspect that the container holds a weapon or contraband, and thus without any justification specific to that container…the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched.”

Thus, the court ruled that a search “incident to the arrest” of someone does not violate that person’s Fourth Amendment rights. Yet the Fourth Amendment itself states that “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.”

How has this apparent contradiction been adjudicated? Two Supreme Court rulings regarding “search-incident” doctrine, based on the need for officers to quickly determine if containers associated with an arrestee contain evidence of the offense itself, or anything that might endanger the safety of police officers and others, have been somewhat contradictory. In United States v. Robinson (1973), a police officer stopped a car based on reliable information that Mr. Robinson’s driver’s license had been revoked. After being arrested on that charge, Robinson was searched and a crumpled cigarette package containing heroine was found. The Court ruled “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the 4th Amendment, but is also a reasonable search under that Amendment.”

Yet in Arizona v. Gant (2009), Rodney J. Gant, was also arrested for driving with a suspended license, but was already walking away from his vehicle when police detained him. After securing Gant and other suspects in patrol cars, police searched his vehicle, where they found narcotics and a weapon. In that case, the Court ruled that police are not allowed to search an arrestee’s car after the arrestee had been handcuffed and there was no realistic possibility that he could gain access to any evidence or weapons in his vehicle.

Flores-Lopez contended that the latter case was applicable because, when narcotics officers searched his cellphone, it was safe in police custody, therefore requiring a warrant to conduct additional searches.

The 7th Circuit Court disallowed the argument, noting that Gant involved the search of a vehicle, and further noting that it was reasonable for  investigators to believe that the number of the cellphone in the defendant’s possession could be used as evidence to link him to other conspirators in the drug-trafficking operation under investigation. With respect to the evidence-preservation and officer-safety rationales contained in Robinson, the Court contended that the “conceivability” that co-conspirators could initiate a remote wipe of the contents of the defendant’s cellphone (evidence preservation) and the availability of stun guns shaped like cell phones (officer safety) made a warrantless search “reasonable,” even if the possibility of a remote wipe was not “probable.”

The unresolved issue? Though discussed by the court, it declined to decide what facts would be required to conduct a warrantless search more extensive than a search for the cell phone’s number. “We need not consider what level of risk to personal safety or to the preservation of evidence would be necessary to justify a more extensive search of a cell phone without a warrant, especially when we factor in the burden on the police of having to traipse about with Faraday bags or mirror-copying technology and having to be instructed in the use of these methods for preventing remote wiping or rendering it ineffectual,” wrote Posner–who then cut to the heart of the issue. “We can certainly imagine justifications for a more extensive search,” he added.

Given contradictory rulings in this arena, including a California State Supreme Court ruling allowing law enforcement officers to go through any content on a suspect’s cell phone, and an Ohio State Supreme Court ruling that such searches violate the Fourth Amendment, it seems likely that the Supreme Court will have to clarify such justifications.

As of now, both sides of the issue were framed by their respective proponents in the law enforcement community. Former Dallas FBI Agent Danny Defenbaugh defended the ruling, claiming it gives law enforcement officials an advantage in fighting crime. “I think not only will it help them, but it could be life saving,” he said. Paul Coggins, former U.S. Attorney for the Northern District of Texas, was far less sanguine. “Does (the ruling) mean officers now have the right to search through your phone, search through your search history, your photographs, your e-mails and the rest, because it could all be wiped clean?” he asked.

And lest anyone think encrypted cell phone passwords are the solution, because requiring one to divulge one’s password would violate the Fifth Amendment’s protection against self-incrimination, think again: in January, a Colorado judge ordered a woman to decrypt her own computer so prosecutors could use the files in it against her in a criminal case. That case will likely end up in front of the U.S. Supreme Court as well–which recently ruled 9-0 that affixing a GPS device to a vehicle for 28 days constitutes a search requiring a warrant. But even in that case, they left open the question of whether GPS monitoring for shorter periods of time would require a warrant.

Technology is rapidly eliminating anything resembling a genuine the right to privacy. Sadly, in a nation of people enthralled with posting the details of their lives on Internet websites, or loading substantial portions of those lives into cellphone and other portable devices, much of that elimination has been voluntary. Law enforcement officials, more often than not, are more than willing to exploit that enthusiasm. it behooves the courts to Constitutionally temper that enthusiasm.

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