You wanna see my smartphone, get a warrant

If police want to poke around the bowels of your home computer, they can't just knock on your door and tell you to give it up. The 4th Amendment requires they petition a court for a search warrant. It may be inconvenient, irritating even, but it's the law and it has served the nation well since the Bill of Rights was adopted.
Tuesday the U.S. Supreme Court will consider if there is any difference between the computer inside your home and the one you carry around in your pocket that also functions as a telephone.
"The justices," as the New York Times said Sunday, "will have to decide how to apply an 18th-century phrase — the Fourth Amendment’s prohibition of “unreasonable searches and seizures” — to devices that can contain 100 times more information than is in the Library of Congress’s 72,000-page collection of James Madison’s papers."


Virtual home or criminal tool?

The 90 percent of Americans who now carry around smartphones carry their lives in their pockets. With these devices people can access their financial, medical and travel records, email, photographs, calendars, records of purchases and Internet browsing and telephone records. If you want to paint a picture of a person, all you have to do is access his or her smart phone. They also can be critical tools for criminals.
When police arrest someone, understandably, they want as much information about the person as possible. And quickly.
That was the case in 2009 when David L. Riley was pulled over in San Diego for having an expired license. Police found loaded guns in his car and when they inspected his cell phone, they found entries linking him to a street gang. Eventually they found information connecting him to a shooting. He ended up with an attempted murder conviction and a 15 years to life prison sentence.
A California appeals court said no search warrant was required, likening the smartphone to a person's wallet or personal papers they might be carrying.
Comparing a smartphone to a wallet is silly on its face, which essentially is what appeals court judges said in the second case.
Brima Wurie was arrested in Boston in 2007 when a search of his flip phone revealed a call log linking him to gun and drug crimes. But in that case, a federal appeals court threw out the evidence found on his phone, citing the 4th Amendment prohibition against "unreasonable searches and seizures."
“Today, many Americans store their most personal ‘papers’ and ‘effects’ in electronic format on a cellphone, carried on the person,” Judge Norman H. Stahl wrote for a divided three-judge panel of the court, quoting the words of the Fourth Amendment.
There are legitimate police concerns that a criminal carrying a smartphone or the person's associates could set up the device to automatically delete information under certain circumstances. Civil libertarians, however, note that for under $100 cell phones can be placed in a Faraday bag, which blocks remote signals and safeguards data they contain. Bagging and preserving potential evidence would allow a magistrate time to consider if "probable cause" exists to issue a search warrant.
It's a fool's bet to try to guess how the high court will rule, but the 2012 unanimous ruling barring police from attaching a GPS tracking device to a car absent a search warrant might offer at least some small window into the justices' thinking. In addition, last week Justice Antonin Scalia, arguable the court's most conservative member and its biggest 4th Amendment champion, decried as a "freedom-destroying cocktail" a majority court ruling giving police a free hand to stop cars based solely on an anonymous tip.
A significant difference between stopping a car being operated by a possibly inebriated driver and temporarily bagging an arrestee's smartphone is that the smartphone is not going to drive off. That difference should be enough to bring reluctant justices around to Scalia's position of protecting Americans from "unreasonable searches and seizures."