As a former detective, who looked through more than his share of cellphones over the years, you’d think I’d be in favor of it. I did what I had to do, in a period where the intrusion was limited. That day is over and gone. Thankfully, the Supreme Court, all of whom probably have smartphones, gets that.
David Riley was pulled over for expired license plates, then arrested once police discovered he was driving on a suspended license. They searched his car, finding illegal firearms and gang-related items.
As part of the search, police took his cell phone from his pants and searched through its information. At the police station, a detective also went through it, noticing suspicious text messages and incriminating videos, and also a photo placing Riley at the scene of a shooting a few weeks earlier.
Riley was later charged with firing a gun at a vehicle, armed assault, and attempted murder. These charges were enhanced because they were gang-related. He was convicted and sentenced to 15 years in prison.
A second case involved Brima Wurie. Searching through his phone during an arrest led police to a location where they discovered drugs, an illegal gun, and evidence that Wurie was a dealer. He was convicted, and sentenced to over 20 years in prison.
The Fourth Amendment in the Bill of Rights includes in part 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…”
The Supreme Court has held that generally this means a police search requires a warrant, unless “it falls within a specific exception to the warrant requirement.” One exception is that the Court has recognized since 1914 “the right on the part of Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.” Another exception is an officer can check for immediately-accessible weapons that could threaten his safety.
Look, here’s the line for me. If you pull over a guy who is dealing drugs and you see him texting while doing it, and after he is texting a second party miraculously shows up, I’m not too worried about scanning his RECENT texts to identify the second guy. I’ll get a warrant if the courts want me too, but looking at recent calls and texts are okay IF THE CRIME IS HAPPENING.
For example, we have two burglars running from a crime. After a short time we catch suspect #1. On him is a cellphone and in the phone are recent texts to another number with “Hey the cops are after me, I’ll meet you back at the house. Good luck.” I should be able to use that found number to find suspect #2- who is at large and possibly dangerous to civilians.
However, if a day goes by and we catch #1, we should grab his phone for evidence, get a warrant and obtain the same text messages. That is follow up! If the search of the phone finds other fruits of a crime, it is all good.
If I am searching the text messages for that particular crime, while it is still going on (remember suspect #2 is still running from the police), and I find something else, like a text from suspect #1 talking about killing someone, it should also be good. BUT, the second that is found, the cellphone is closed and a warrant is obtained.
Today’s phone are literally a peek into our daily lives, so much so on some phones that the intrusion would be akin to literally walking next to the person as the moved through their lives. Think “The Lives of Others” movie about the East German Stasi.
These are no longer just tools to communicate, they are literally part of our daily lives. To look at them is to figuratively stand in someone’s living room rummaging through their filing cabinets.
Too much access to be left to some police officer, without some oversight.