Warrantless Cellphone Searches and Fourth Amendment Rights

Can the police look at your cell phone when you are arrested? Soon, the Supreme Court will rule on two cases involving police authority to search individual cellphones without a warrant. In the past, the Supreme Court has permitted police to search persons after an arrest to ensure safety and to prevent destruction of evidence.

Nonetheless, the prevalence of cell phones, with all the personal information they may contain in emails and text messages, presents new issues. The Supreme Court will hear both a state case involving a smartphone and a federal case involving a flip phone.

Riley v. California

Police arrested David Riley for driving with expired license plates. Through a routine traffic stop, police also discovered Riley’s suspended license and concealed guns under the vehicle’s hood. Upon searching his Samsung smartphone, twice without a warrant, they found video and pictures that incriminated him as a gang member and linked him to a shooting incident.

At Riley’s trial, no one positively identified him, yet data from his cell phone search was put before the jury, and they convicted him of 3 counts: shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon.

U.S. v. Wurie

Police arrested Brima Wurie after they saw him make a drug deal out of his vehicle. While Wurie was in police custody, his LG flip phone rang repeatedly from the contact “my house.” After retrieving the contact’s number and tracing it to Wurie’s residence, police obtained a search warrant. Upon searching his apartment, they found crack cocaine, marijuana, cash, a firearm, and ammunition.

The 1st Circuit appeals court reversed the ruling under unreasonable search and seizure. Regardless, the Justice Department contends, “police have full authority not only to seize any object they find on an arrestee, but also to search its contents.”

Technology & Your Privacy

According to the Pew Research Center, over 9 in 10 adult Americans have cell phones, more than half having “smartphones.” Lower courts have issued various rulings with regard to conflict between technology, antiquated laws, and privacy. Not far behind the issue of cellphone searches lies the issue of “warrantless tracking”– whether police can obtain the location of cellphone users from service providers without a warrant. Supreme Court justices may soon determine the question: Are we voluntarily relinquishing our right to privacy?

Article by Ally Arias, Assistant at the Law Office of Fred Dahr

National Commission on Forensic Science Introduced To Synchronize Its Use Across Disciplines

The establishment of a National Commission on Forensic Science to initiate an evaluation of forensic science practices was announced by a joint effort of the U.S. Department of Justice and the Department of Commerce’s National Institute of Standards and Technology (NIST) on February 15, 2013. The proposal is aimed at the endeavor to “strengthen and enhance” the implementation of forensic science on all levels: local, state, and federal.

The commission, composed of approximately 30 members, will attempt to outline standards for the practice of forensic science to ensure the quality and validity of evidence found in laboratories across the United States. NIST-administered groups of forensic practitioners and academic researchers will work alongside prosecutors, defense lawyers, judges, and other relevant stakeholders to develop discipline-specific guidelines for practice. The guidelines will then be proposed for national endorsement by the commission and the Attorney General.

According to a New York Times article, the creation of the commission addresses a well-founded concern, which began as early as the 1990s, about forensic science’s production of evidence in criminal courts. The article cites a report from the National Academy of Sciences, which notes the lack of valuable uniform measures and procedures for examiners, laboratories, and testimony in court.

The report, entitled Strengthening Forensic Science in the United States: A Path Forward, was released four years ago. The National Academy of Sciences, a panel chartered
by Congress, found that technical expert comparisons of evidence frequently used in the courtroom, like strands of hair, marks, handwriting, tracks, prints, and patterns, revealed human bias and lacked regulation. The NAS report urged the government to enforce some means of uniformly controlling crime labs, examiners, and researchers.

The new commission will be a welcomed step forward for many scientists, courtroom patrons, and policy makers. Moreover, it will help to establish coordination across forensic disciplines under the federal government’s supervision. Policy recommendations will not only delineate standard procedures for labs and courtroom use of forensic evidence but also requirements of certification and training, along with professional uniform codes.

Peter Neufeld, co-founder of the Innocence Project, an organization that advocates for prisoners who may be exonerated through DNA testing, acknowledges the measure as “a very good first step.” Nonetheless, those involved with the Innocence Project remain hopeful that the government will soon tackle “the one major gap in this agreement,” which Neufeld says is funding for research and oversight.

Article by Ally Arias, Assistant at the Law Office of Fred Dahr

Drones Raise Privacy Issues

Could unmanned aerial vehicles, or drones, be a threat to our privacy? Representative Lance Gooden, Republican of Terrell, strongly affirms that with the use of drones, individuals may be bird’s-eye targets of “indiscriminate surveillance.”

A recent article in The New York Times recounts a demonstration by Gooden, in an effort to support his bill aimed at preventing threats to personal privacy from the drone usage. Through a pair of goggles, lawmakers were able to view a drone’s panoramic aerial video recording as it flew north of the Texas Capitol.

The Federal Aviation Administration currently prohibits commercial use of drones, which means they may not be used for business purposes. However, aviation hobbyists and law enforcement, according to Gooden, are increasingly using the technology. John Whitmire, Democrat of Houston and chairman of the Criminal Justice Committee, is sponsoring Mr. Gooden’s bill in the Senate. The bill provides limits for the use of drones by both parties.

The bill would make the use of an “unmanned vehicle or aircraft” to record video or take photos of private property without the owner or occupant’s consent a Class C misdemeanor. Moreover, an additional penalty would ensue for having or sharing any videos or photos taken by an illegally operated drone.

As for law enforcement, unless they are in immediate pursuit of a suspect, the bill requires a search or an arrest warrant for drone usage. Nonetheless, this stipulation would not apply within 25 feet of the United State’s border with Mexico. There, the use of drones by the government is beneficial for national security.

In the article, Dr. Humphreys notes that drones are not always used to monitor an individual. Rather, their common usage for research, which would be considered a private use, is efficacious. Mr. Gooden’s bill would outlaw the use of drones for this purpose.

All the same, Humphreys would support a law that forbids the continued monitoring of an individual. Thus, it cannot be denied that Goodens’s bill raises important issues for personal privacy and the capabilities of advanced technology in the world today.