Commentary Forum: 05/13

Commentary Forum: 05/13

Forum Center: The smartphone may be the new home

By Alex Culpepper

Illustration: Jed Helmers

An old saying tells us a person’s home is his or her castle. A 21st century version of that saying might become something like this: a person’s home, and smartphone, are his or her castles. It all depends on what ruling the Supreme Court decides next month regarding a case in which a California man was arrested for driver’s license and firearm violations. 

In 2009, police stopped David Riley for having expired tags and a suspended license. Police also found guns in his car. Police then searched his smartphone on site and found evidence of more sinister activity linked to a shooting. At his trial, his legal defense claimed the smartphone search was illegal under the Fourth Amendment because it was performed without a warrant. The court did not buy it. Riley was eventually convicted of attempted murder, and his subsequent appeal failed to sway the California Supreme Court.

Joining Riley’s case before the Court is another from an incident in 2007 in which Boston police confiscated Brima Wurie’s phone during an arrest and looked up the number of a caller. The information led to a cocaine bust, and Wurie was sentenced to more than 20 years in prison. Later, a federal appeals court did side with Wurie and a Fourth Amendment violation, and it voiced concerns about the personal information available on the phone. So, with this two-in-one case before the Court, debate forms about how personal our phones are and whether police can have access to them upon arrest.

Proponents of these searches say smartphones are no different from anything else a person may be carrying when arrested, such as a wallet with photographs and other items and should be searchable by police without a warrant. They say it is consistent with past practices and methods of police detainment. Proponents of searches also say the search is viewed as a safety precaution for officers to avoid potential dangerous situations like an ambush. Finally, they say smartphones can be wiped clean from a remote position, eliminating potential evidence of serious crime, and that hurts police investigation.

For opponents of these searches, the argument is simple: smartphones contain practically every personal detail about its owner and are, in effect, our new homes and should be treated as such in the event of a search – i.e. with a warrant or probable cause. They say it is no different to snoop through someone’s smartphone than it is to walk into his or her house and look through papers and documents.  

The Supreme Court’s ruling on these cases will determine, at least until another case comes up, the limits to a person’s privacy concerning his or her mobile phone. These cases go deep into the Fourth Amendment, and they show how the country’s privacy laws may be changing as rapidly as companies roll out new products and services. 

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com

Commentary Forum Question of the Week:

Should a warrant be required for police to search someone’s smartphone upon arrest, as it is required to search someone’s home?

Commentary Right: The electronic equivalent of a strip search

By Marianne Stanley

Death by a million cuts. That’s what America is experiencing today – a killing as methodical as it is intentional. One after the other, the amendments in our Bill of Rights are being shredded. Peaceful protestors with a First Amendment right to gather and redress grievances against the government were pepper sprayed, beaten, handcuffed and arrested during Occupy Wall Street. Religion is being insidiously slipped into law in the form of prayer before town meetings and anti-abortion legislation. Property is confiscated during traffic stops and drug busts, even before any finding of guilt. Handcuffs are appearing everywhere and used on us for no good reason, as a man at his recent school board meeting in New Hampshire found out when he dared to speak longer than his allotted two minutes and was actually arrested. Voters in some of the poorer areas of Florida have seen their polling places closed, and it was recently announced those that remain open will not permit restroom use, despite waits that have been as long as six hours. And the list goes on.

Should the contents of cell phones be accessible to the police or to government? Absolutely not. That’s why we have this thing called a search warrant. Probable cause or reasonable suspicion provides a basis for a warrant to search further. Otherwise, hands off! Privacy has been one of our most treasured rights, but it is under serious attack while we all sit back and meekly relinquish our individual rights one by one. Why are Dayton citizens, for instance, not rallying in force against the decision of the mayor and city council’s installation of 27 surveillance cameras downtown? It is one thing for business owners to put them up to protect their property; quite another for government to watch us 24/7, supposedly in the name of safety and security. To paraphrase Ben Franklin, “Those who sacrifice freedom for security deserve neither.” 

It’s rather ironic, don’t you think, that thousands of our military men and women have died and are dying now for our “freedom” when we no longer have it here at home? We have gone from the days when the police looked like regular uniformed people with faces to anonymous monsters in dark helmets or swat team outfits replete with lethal weapons. We are members of society and, as such, have every right to be respected and protected by law enforcement, rather than intimidated and abused by them. Aren’t they supposed to be on our side, on our team, united with us against the ‘bad guys’? When did we become the bad guys? We have every right to protest the XL pipeline, or fracking in our communities, or nuclear proliferation, or air and water pollution or any frigging thing we want, as long as we are doing it peacefully. This is not only our right, but our duty as an engaged citizenry. Those who blindly hang the flag and put their hand over their heart when saying the Pledge of Allegiance are not “patriots,” but rather are just parading as such. True patriots hold government accountable and don’t support it when it is doing wrong. We are supposed to be the watchdogs of democracy, not limp-wristed pansies who allow it to slip from our grasp just because it takes courage and action to fight back against the forces that are persistently and insistently undermining it today. 

The guy whose cell phone info produced a drug bust is not the bigger danger; a government that can invade our lives at will is. We have been brainwashed into thinking the “Drug War” is a good thing. It’s not. It’s an excuse our government uses for its own purposes. We have more than a million harmless Americans in our newly privatized prisons on drug charges. You can’t fight drug use with cops and guns just as you can’t fight “terror,” as our everlasting – and stupid – “War on Terror” should have made clear to us by now. That’s the antithesis of what terror does and means. Government resources and personnel should be used instead to improve the quality of life here in America, from better schools – not charter schools – to job creation. Think of it: we could actually have a middle class again and 50 million fewer hungry people in this country every day!

Draw the line! Though it should have been drawn way-back-and-long-ago by our illustrious members of Congress, it looks like it is up to us now to defend and protect our basic human rights. No one has a right to invade our home and, likewise, no one has a right to invade our private cell phone data that contains a microcosm of our lives.

Every human being needs to experiment, experience, learn and grow, and to this end, we must be left alone to live our lives free from government scrutiny. Whoever came up with this “law and order” phrase and mentality needs to have their head examined. The best societies have the best “order” because they have the fewest laws. In case anybody hasn’t noticed, since our “law and order” penchant, our prison population has exploded and society continues to fall apart before our eyes.

The fear foisted on us by media has turned us into a cruel and unjust society, so unlike the vision of our founders. Time to say, “No more!” – or meekly trade in our mayors, city councils and legislators for a shepherd.

Marianne Stanley is an attorney, college professor and former journalist who believes many of our nation’s ills could be cured if our children were taught critical thinking skills beginning at the elementary level and continuing through middle and high school. She can be reached at MarianneStanley@DaytonCityPaper.com.

Commentary Right: U.S. Supreme Court can learn from Ohio high court

By Rob Scott

I do not know what I would do without my Apple iPhone. This magical smartphone contains all of my contacts, emails, calendar, banking information, credit card information, car payment and much more. I pay all of my bills from my smartphone and have hundreds of pictures of my dog Barney.

I know I’m not alone with this dependency on my smartphone device. According to Forbes magazine, more than 90 percent of U.S. adults own a cell phone, with 75 percent of those being a smartphone. Ninety-one percent of adults keep their smartphone within arm’s reach.

When questioned or being accused of a crime, a suspect’s cell phone – that more likely is a smartphone – could be at issue. This is exactly what is at stake before the U.S. Supreme Court in two cases, with arguments that took place last month.

The two cases are technically being heard separately, but both involve criminal conspiracy. In one case, San Diego police arrested David Leon Riley for expired tags and found two guns in his trunk. Searching his smartphone, they found evidence of Riley’s connection to a local faction of the Bloods street gang, including pictures of Riley himself throwing up gang signs. The police eventually connected Riley to an earlier shooting using the guns in his trunk, and he was convicted on charges of assault and attempted murder.

In the other case, Boston cops arrested Brima Wurie after a suspected drug transaction, and traced a call from “home” on his flip phone. After getting a warrant and searching the apartment, they found a large stash of crack cocaine. Both defendants are arguing the search of their cell phones without a warrant violates their Fourth Amendment rights.

It is well established that searches conducted without a warrant are, per se, unreasonable, subject to certain “jealously and carefully drawn” exceptions. There is an exception if the search is incident to arrest, which allows officers to conduct a search that includes an arrestee’s person and the area within the arrestee’s immediate control.

Ironically, in Ohio there was a case of first impression on point out of Beavercreek. A man’s phone was taken after he was arrested for selling drugs. The officers searched the phone and retrieved the data they needed from a drug sting. The Ohio Supreme Court ruled in 2009 the Fourth Amendment to the U.S. Constitution does prohibit the warrantless search of data within a cell phone when the phone is lawfully seized incident to an arrest. In State v. Smith, the high court determined people can have a reasonable expectation of privacy when it comes to cell phones – including smartphones – and as such, police should require a warrant in order to retrieve data on the phone.

The Ohio Supreme Court further stated: “Given their unique nature as multifunctional tools, cell phones defy easy categorization. On one hand, they contain digital address books very much akin to traditional address books carried on the person, which are entitled to a lower expectation of privacy in a search incident to an arrest. On the other hand, they have the ability to transmit large amounts of data in various forms, likening them to laptop computers, which are entitled to a higher expectation of privacy.

But cell phones are neither address books nor laptop computers. They are more intricate and multifunctional than traditional address books, yet they are still, in essence, phones, and thus they are distinguishable from laptop computers. 

Although cell phones cannot be equated with laptop computers, their ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone are neither lost nor erased. But because a person has a high expectation of privacy in a cell phone’s contents, police must then obtain a warrant before intruding into the phone’s contents.”

Florida, Maine and New Hampshire have followed Ohio’s warrant requirement for police to search cell phones or smart phones. The U.S. Supreme Court will follow Ohio as well. 

Like the Ohio ruling, the high court will agree today’s American does have a legitimate expectation of privacy of what is on their smartphone. Many have pictures, text messages, emails, contacts and much more they would not want known to the general public, including a police officer.

Not only is there a Fourth Amendment right, but, in my opinion, a Fifth Amendment right against self-incrimination. I went into great detail regarding our Fifth Amendment rights and technology in my March column in this publication.

If the U.S. Supreme Court follows the Ohio precedent, there will be a Fourth Amendment privacy right to smartphone data across the United States. If this is the ruling, police will be required to obtain a warrant before pulling any data from someone’s phone.

Ultimately, the greatest legal advice and most practical suggestion would be to password-protect your phone in order to protect the data from a thief or even the police.

Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman and founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or gemcitylaw.com.

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