BOSTON The U.S. Supreme Court on Tuesday hears arguments in United States v. Wurie — a case that originated in South Boston. At stake is whether a police officer without a warrant can search the call log of a cellphone found on someone who has been arrested.
Brima Wurie was arrested in 2007 for allegedly selling drugs in the parking lot of a Dorchester Avenue convenience store in South Boston.
“While the police were booking the individual his cellphone went off,” explained Martin Healy, who is chief legal counsel for the Massachusetts Bar Association and has been following the case. He says when Wurie’s cellphone rang, the police noticed the caller ID read “my house.” The police opened the phone and found the associated number.
“The police officers then ran that phone number and found out the location of the defendant’s house,” Healy said.
Ultimately, police got a warrant and found drugs and a firearm in the house. But they may not have found that evidence if they hadn’t opened the phone.
“Never before has the United States Supreme Court decided whether or not a cellphone is subjected to police search after the arrest of an individual,” Healy said.
What’s at stake here is the Fourth Amendment. Harvard Law professor and former federal Judge Nancy Gertner says that when the Founding Fathers outlawed “unreasonable search and seizure,” they had something different in mind: the Redcoats.
“The English could essentially knock down doors and look for whomever they wanted, so this is a bedrock principle of the Constitution,” Gerner said, explaining that the courts have delineated two primary exceptions that allow officers to search suspects. “On the one hand to prevent evidence from being destroyed, and on the other hand to protect the officer.”
Courts have ruled broadly — almost anything on the arrested person or in the immediate vicinity can be searched. Now the question is should a cellphone, because it holds so much personal information, be treated differently?
“The cellphone is the functional equivalent of a suitcase with all of our secrets in it,” said Gertner, who helped prepare the public defender representing Wurie. She says in the Wurie case, police only looked at the cellphone call log, but our phones contain far more information than that.
“When you think about it, it’s more than just whom you called. It’s the pictures that you have on it, it’s the websites you’ve visited,” she said.
This debate pits these privacy concerns against concerns about the destruction of evidence.
“On its face the data on the cellphone is not in danger of being destroyed,” Gertner said.
But others beg to differ.
“You have criminal organizations these days that actually have their own IT departments,” said Michigan lawyer Gaetan Gerville-Reache. He filed an amicus brief in a similar cellphone case the Supreme Court is also hearing Tuesday. He argues police officers need the right to search cellphones without a warrant. Those criminal IT departments worry him.
“As soon as they discover that someone has been arrested by law enforcement, they have the capability to remotely wipe the phones,” Gerville-Reache said. “It’s not like a handbag where you can just take it and then you know no one can do anything about destroying the evidence that’s inside it.”
It is possible for authorities to preserve cellphone data by turning the phone off or putting it in a bag that blocks reception, but Gerville-Reache says law enforcement can’t rely on that.
“The problem is that at some point in order to search the phone you gotta open up the bag or you gotta turn the phone on,” he said.
Technology is changing rapidly, and the Supreme Court must now decide whether searching a cellphone is unreasonable or not. Gertner says this will be new territory for the court and for some of the supreme court justices.
“It’s absolutely fascinating, and you go before judges who, you know, some number of the judges are in their 80s. I hope they have cellphones,” Gertner said.
The high court is expected to hand down its decision this summer.