[Vision2020] Courts Divided Over Searches of Cellphones

Art Deco art.deco.studios at gmail.com
Mon Nov 26 07:54:20 PST 2012

  [image: The New York Times] <http://www.nytimes.com/>

November 25, 2012
Courts Divided Over Searches of Cellphones By SOMINI

Judges and lawmakers across the country are wrangling over whether and when
law enforcement authorities can peer into suspects’ cellphones, and the
cornucopia of evidence they provide.

A Rhode Island judge threw out cellphone evidence that led to a man being
charged with the murder of a 6-year-old boy, saying the police needed a
search warrant. A court in Washington compared text messages to voice mail
messages that can be overheard by anyone in a room and are therefore not
protected by state privacy laws.

In Louisiana, a federal appeals court is weighing whether location records
stored in smartphones deserve privacy protection, or whether they are
“business records” that belong to the phone companies.

“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer
with the Electronic Frontier Foundation, a San Francisco-based civil
liberties group. “They can’t even agree if there’s a reasonable expectation
of privacy in text messages that would trigger Fourth Amendment

The issue will attract attention on Thursday when a Senate committee
considers limited changes to the Electronic Communications Privacy Act, a
1986 law<http://www.justice.gov/jmd/ls/legislative_histories/pl99-508/act-pl99-508.pdf>that
regulates how the government can monitor digital communications.
Courts have used it to permit warrantless surveillance of certain kinds of
cellphone data.

A proposed amendment would require the police to obtain a warrant to search
e-mail, no matter how old it was, updating a provision that currently
allows warrantless searches of e-mails more than 180 days old.

As technology races ahead of the law, courts and lawmakers are still trying
to figure out how to think about the often intimate data that cellphones
contain, said Peter P. Swire, a law
professor<http://moritzlaw.osu.edu/faculty/bios.php?ID=50>at Ohio
State University. Neither the 1986 statute nor the Constitution, he
said, could have anticipated how much information cellphones may contain,
including detailed records of people’s travels and diagrams of their

“It didn’t take into account what the modern cellphone has — your location,
the content of communications that are easily readable, including Facebook
posts, chats, texts and all that stuff,” Mr. Swire said.

Courts have also issued divergent rulings on when and how cellphones can be
inspected. An Ohio court ruled that the police needed a warrant to search a
cellphone because, unlike a piece of paper that might be stuffed inside a
suspect’s pocket and can be confiscated during an arrest, a cellphone may
hold “large amounts of private data.”

But California’s highest court said the police could look through a
cellphone without a warrant so long as the phone was with the suspect at
the time of arrest.

Judges across the nation have written tomes about whether a cellphone is
akin to a “container” — like a suitcase stuffed with marijuana that the
police might find in the trunk of a car — or whether, as the judge in the
Rhode Island murder case suggested, it is more comparable to a face-to-face
conversation. That judge, Judith C. Savage, described text messages as
“raw, unvarnished and immediate, revealing the most intimate of thoughts
and emotions.” That is why, she said, citizens can reasonably expect them
to be private.

There is little disagreement about the value of cellphone data to the
police. In response to a Congressional inquiry, cellphone carriers said
they responded<http://www.nytimes.com/2012/07/09/us/cell-carriers-see-uptick-in-requests-to-aid-surveillance.html?pagewanted=all>in
2011 to 1.3 million demands from law enforcement agencies for text
messages and other information about subscribers.

Among the most precious information in criminal inquiries is the location
of suspects, and when it comes to location records captured by smartphones,
court rulings have also been inconsistent. Privacy advocates say a trail of
where people go is inherently private, while law enforcement authorities
say that consumers have no privacy claim over signals transmitted from an
individual mobile device to a phone company’s communications tower, which
they refer to as third-party data.

Delaware, Maryland and Oklahoma have proposed legislation that would
require the police to obtain a warrant before demanding location records
from cellphone carriers. California passed such a law in August after
intense lobbying by privacy advocates, including Mr. Fakhoury’s group. But
Gov. Jerry Brown, a Democrat, vetoed the
questioning whether it struck “the right balance between the operational
needs of law enforcement and individual expectations of privacy.”

Similar legislation has been proposed in Congress.

Lacking a clear federal statute, the courts have been unable to reach a
consensus. In Texas, a federal appeals court said this year that law
enforcement officials did not need a warrant to track suspects through
cellphones. In Louisiana, another federal appeals court is considering a
similar case. Prosecutors are arguing that location information is part of
cellphone carriers’ business records and thus not constitutionally

The Supreme Court has not directly tackled the issue, except to declare, in a
landmark ruling<http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html?pagewanted=all&_r=0>this
year, that the police must obtain a search warrant to install a GPS
tracking device on someone’s private property.

“We are in a constitutional moment for location tracking,” said Ben Wizner,
director of the American Civil Liberties Union’s Speech, Privacy and
Technology Project. “It’s percolating in all these places.”

The Rhode Island case began shortly after 6 a.m. on a Sunday in October
2009, when Trisha Oliver called 911 to say that her son, Marco Nieves, 6,
was unconscious in his bed. An ambulance rushed the boy to the hospital. A
police officer also responded to the call, and Ms. Oliver escorted him
through the bedrooms of her apartment. She then went to the hospital,
leaving the police officer behind.

The officer heard a “beeping” in the kitchen, according to court papers. He
picked up an LG-brand cellphone from the counter and saw this message: “Wat
if I got 2 take him 2 da hospital wat do I say and dos marks on his neck
omg.” It appeared to be from Ms. Oliver to her boyfriend, Michael Patino,
court documents said.

Mr. Patino, 30, who was in the apartment at the time, was taken to the
police station for questioning. The cellphone he had with him was seized.
By evening, the boy was dead. The cause of death, according to court
records, was “blunt force trauma to the abdomen which perforated his small

Mr. Patino was charged with Marco’s murder.

In the course of the investigation, the police obtained more than a dozen
search warrants for the cellphones of Mr. Patino, Ms. Oliver and their
relatives. They also obtained records of phone calls and voice mail
messages from the cellphone carriers.

Nearly three years later, in a 190-page
Judge Savage sharply criticized the police.

The first police officer had no right to look at the phone without a search
warrant, Judge Savage ruled. It was not in “plain view,” she wrote, nor did
Ms. Oliver give her consent to search it. The court said Mr. Patino could
reasonably have expected the text messages he exchanged with Ms. Oliver to
be free from police scrutiny.

The judge then suppressed the bounty of evidence that the prosecution had
secured through warrants, including the text message that had initially
drawn the police officer’s attention.

“Given the amount of private information that can be readily gleaned from
the contents of a person’s cellphone and text messages — and the heightened
concerns for privacy as a result — this court will not expand the
warrantless search exceptions to include the search of a cellphone and the
viewing of text messages,” she wrote.

Mr. Patino remains in jail while the case is on appeal in the state’s
Supreme Court. A lawyer for Mr. Patino did not respond to a request for

Just months before Judge Savage’s ruling, the Rhode Island legislature
passed a law compelling the police to obtain a warrant to search a
cellphone, even if they find it during an arrest. Gov. Lincoln D. Chafee,
an independent, vetoed the bill,
“The courts, and not the legislature, are better suited to resolve these
complex and case-specific issues.”

Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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