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<div class="">November 25, 2012</div>
<h1>Courts Divided Over Searches of Cellphones</h1>
<h6 class="">By
<span>
<a href="http://topics.nytimes.com/top/reference/timestopics/people/s/somini_sengupta/index.html" rel="author" title="More Articles by SOMINI SENGUPTA"><span>SOMINI SENGUPTA</span></a></span></h6>
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<p>
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. </p>
<p>
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. </p>
<p>
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. </p>
<p>
“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 protection.” </p>
<p>
The issue will attract attention on Thursday when a Senate committee
considers limited changes to the Electronic Communications Privacy Act, <a title="The text of the law (PDF)." href="http://www.justice.gov/jmd/ls/legislative_histories/pl99-508/act-pl99-508.pdf">a 1986 law</a>
that regulates how the government can monitor digital communications.
Courts have used it to permit warrantless surveillance of certain kinds
of cellphone data. </p>
<p>
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.
</p>
<p>
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 title="Mr. Swire’s faculty biography page." href="http://moritzlaw.osu.edu/faculty/bios.php?ID=50">a law professor</a>
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 friends. </p>
<p>
“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. </p>
<p>
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.” </p>
<p>
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. </p>
<p>
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. </p>
<p>
There is little disagreement about the value of cellphone data to the
police. In response to a Congressional inquiry, cellphone carriers <a title="An article about cellphone carriers and law enforcement." href="http://www.nytimes.com/2012/07/09/us/cell-carriers-see-uptick-in-requests-to-aid-surveillance.html?pagewanted=all">said they responded</a> in 2011 to 1.3 million demands from law enforcement agencies for text messages and other information about subscribers. </p>
<p>
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.
</p>
<p>
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, <a title="Governor Brown’s veto message (PDF)." href="http://gov.ca.gov/docs/SB_1434_Veto_Message.pdf">vetoed the bill</a>,
questioning whether it struck “the right balance between the
operational needs of law enforcement and individual expectations of
privacy.” </p>
<p>
Similar legislation has been proposed in Congress. </p>
<p>
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
protected. </p>
<p>
The Supreme Court has not directly tackled the issue, except to declare, in <a title="An article about the ruling." href="http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html?pagewanted=all&_r=0">a landmark ruling</a> this year, that the police must obtain a search warrant to install a GPS tracking device on someone’s private property. </p>
<p>
“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.” </p>
<p>
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. </p>
<p>
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. </p>
<p>
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 intestine.” </p>
<p>
Mr. Patino was charged with Marco’s murder. </p>
<p>
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. </p>
<p>
Nearly three years later, <a title="The ruling (PDF)." href="http://dl.dropbox.com/u/96984918/State%20v%20Patino-%20FINAL.pdf">in a 190-page ruling</a>, Judge Savage sharply criticized the police. </p>
<p>
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. </p>
<p>
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. </p>
<p>
“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. </p>
<p>
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
comment. </p>
<p>
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, <a title="Governor Chafee’s veto message (PDF)." href="http://www.governor.ri.gov/documents/Vetoes/Veto%20Message%2012-H%207110.pdf">saying</a>, “The courts, and not the legislature, are better suited to resolve these complex and case-specific issues.” </p>
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