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Supreme Court to decide issue of cellphone privacy

Tue., April 29, 2014

WASHINGTON – The Founding Fathers will meet the selfie generation next week when the Supreme Court dials up the case of a California man incriminated by his smartphone.

Loaded with pictures, some of them imprudent, David Leon Riley’s Samsung Instinct was searched by police in 2009 without a warrant. He got busted. Now the justices, who sometimes seem uncomfortable with new technologies, will consider a quintessentially 21st-century problem.

In an unplugged courtroom today, where television cameras and electronic devices have long been banned, justices must fit data-packed smartphones into the contours of the Fourth Amendment’s guarantee against unreasonable searches and seizures.

The eventual outcome will clarify rules that were written long before phones wised up.

“A modern smartphone,” Stanford Law School professor Jeffrey Fisher noted in a brief, “is a portal into our most sensitive and confidential affairs. The digital contents of such a device should not be subject to a fishing expedition.”

Fisher is representing Riley, the San Diego man whose case will be heard along with a separate flip-phone search challenge filed by a Boston-area native named Brima Wurie. The cases pose potentially far-reaching consequences for police and phone users alike.

Privacy advocates fear that a ruling against Riley and Wurie would render vulnerable the secrets of the 90 percent of U.S. adults who own cellphones, a growing number of which are outfitted like the various iPhone, Samsung or Android models.

Law enforcement officials, in turn, fear they might lose an invaluable investigative tool.

“A photograph, short video, letter, list of addresses or other material that could be properly seized from an arrestee’s pocket in paper form is not imbued with special First and Fourth Amendment protection simply because it is digitized and carried on a cellphone,” the California Attorney General’s Office wrote in a brief.

California Solicitor General Edward Dumont, whom President Barack Obama once nominated to the federal bench, will join with Obama’s Deputy Solicitor General Michael Dreeben in urging the court to give law enforcement leeway in searching smartphones.

The Riley and Wurie cases present different scenarios, and they’ll be argued back to back for an hour each this morning. Both rest on the warrantless searches of devices unimagined at the time the Fourth Amendment was ratified in 1791.

“I think the Riley case, in particular, is incredibly important,” Elizabeth Wydra, chief counsel of the liberal Constitutional Accountability Center, said Friday, “and it should be important for everyone who has a smartphone.”

Riley was pulled over by a San Diego police officer on Aug. 22, 2009.

Police impounded Riley’s Lexus for his driving with a suspended license, and in a subsequent search found two guns. A police officer then scrolled through Riley’s unlocked phone, finding video clips of gang initiation fights, pictures of gang signs and clips of a red Oldsmobile allegedly used in an earlier gang shooting.

Convicted on charges that included attempted murder, Riley was sentenced to prison for 15 years to life. The 23-year-old is incarcerated at California’s Kern Valley State Prison.


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