The merits briefs in Riley v. California, 13-132 and U.S. v. Wurie, 13-212. are not publicly available online yet. However, the Electronic Frontier Foundation has posted its amicus brief and it is quite informative. The amicus brief is located here: https://www.eff.org/files/filenode/riley_eff_cdt_amicus.pdf. In Riley, the trial court admitted the smartphone contents against the Defendant that was seized. According to the Oyez Project at IIT Chicago-Kent College of Law: “Riley had his cell phone in his pocket when he was arrested, so a gang unit detective analyzed videos and photographs of Riley making gang signs and other gang indicia that were stored on the phone to determine whether Riley was gang affiliated.” In Wurie, the First Circuit overturned a federal district court judge’s ruling denying a motion to suppress a cell phone seized and searched after law enforcement heard it ring at the police station. Again, the Oyez Project at IIT Chicago-Kent College of Law is instructive: “When Wurie arrived at the police station, his cell phone rang. The police opened the phone and traced the call to an address in Boston. The police went to the address, knocked, and smelled marijuana when a woman opened the door.” First, amici assert that the Government is not making a secret out of literally seeking a bright line rule that would allow police to seize and search, without a warrant, all smartphone contents incident to arrest. In other words, the Government is seeking to obliterate the warrant requirement for all handheld computers in the possession of an arrestee. This is chilling in the USA where most communication—whether it be SMS messages, emails, attached documents, and even recorded voice communication is conducted via smartphone.
I have blogged before that the law evolves more slowly than technology. However, there is no question—in my mind at least—that smartphones make it easier but not more socially acceptable for law enforcement to seize data that would be just as tantamount to the founder’s conception of personal papers as if it were stored in a desk drawer or on a desktop tower computer. Stay tuned. I surely will.
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This photo of the printed circuit board of a Nokia mobile phone is taken from Wikipedia commons. Distribution of this photo is unlimited by Wikicommons. Photo by
Martin Brož. Photo available at: http://en.wikipedia.org/wiki/Mobile_phone
Update: these two cases were decided in favor of the defendants requiring law enforcement to obtain warrants to search the contents of electronic devices in most cases where there are not emergency circumstances.
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