Fates unclear for cellphone search cases | UTSanDiego.com

It always seemed clear to me and to most legal professionals that police searching a person's cell phone without a warrant was an illegal act.  The June 25, 2014 unanimous US Supreme Court ruling in Riley v. California confirms that understanding.

Even though most judges, courts, prosecutors and police understood that, they did those illegal searches for years because there was no "firm ruling" against this type of search, and because there was no penalty to police if they violated citizen's rights.  They had no orders to "not search" people's phones, so in the interest of "fighting crime" they went ahead and did it.  This is their "good faith exception."

Now it appears that Riley v. California is complicating prosecutions in progress and previous convictions based upon this "illegally obtained evidence"  See this article by Kristina Davis in the San Diego Union Tribune: Fates unclear for cellphone search cases | UTSanDiego.com:  The article cites a few cases of pretty horrible crimes that were uncovered and prosecuted based upon illegal searches of a suspect's cell phone.  I would assume that there are similar situations now all over the US.   Yes, in these cases the cell phone searches were keys to prosecution, and I'm sure there were other cases.  However how many thousands (or millions across the US) of illegal searches were done by police in cases of stops or arrests for minor offenses (broken tail light) were there when nothing illegal was found?  How many times has TSA illegally searched (without a warrant) American's cell phones or laptops when they are returning to the US after a trip abroad? From the news, it appears that the practice was very common, and that the police even would extort passwords from suspects so they could get into phones and online accounts.

It would be appropriate to fine or discipline those who conducted, or directed the illegal cell phone searches prior to the Riley vs California ruling, since it seemed so obvious to everyone (including the Supreme Court) that what they were doing was illegal.  However, (per the "good faith exception") they will argue that they were "just doing their job the best  way they knew how."  However any illegal search AFTER Riley  vs California should be an immediate cause for legal prosecution.  Any officer doing so should be immediately suspended and prosecuted!  I can still see police pulling me over for a broken tail light asking for my phone and passwords.  They can say:  "Either give me your phone and passwords, or you can sit here on the side of the road and wait a couple of hours until another officer brings a search warrant." -- Or they will say "Do you have something to hide on your phone?  If not, give it to me, and you will be quickly on your way!"  It is a very awkward situation.  This ruling doesn't seem to stop that from happening.

On the other hand, I totally disagree with the concept overturning convictions based upon "illegally obtained" evidence.  These suspects were clearly sleazebag criminals and deserve to be convicted and punished.  When the  1966 Miranda v. Arizona decision was made, and police were then suddenly forced to read everyone their rights and, many convictions were overturned where the suspect wasn't properly "Mirandized." .   It was clear that the suspect was guilty, but the conviction was reversed as a way to "punish" the police and prosecutors" for violating the citizen's rights. When police, prosecutors, or judges clearly violate citizens rights, there needs to be some other form of sanctions, discipline, or punishment for doing so. --Not letting convicted criminals go free!

This Riley vs California situation is very similar to Miranda in that sense.  The arrests, prosecutions and convictions cited in this article for child sex, child pornography etc are heinous crimes and the evidence, while obtained illegally, is still valid evidence of  the crime. In these cases, it would be reasonable to think that the police would have had grounds to obtain a legal search warrant, and would have searched the phone(s) anyway, if it weren't for the "good faith exception" they were operating on.

Supreme Court Justices Struggle With Issue of Cell Phone Searches

I think this US Supreme Court decision could have a huge impact on many aspects of our lives, as well as international relations.

There have been lots of write-ups and articles about it:

• ABC News:  Supreme Court Justices Struggle With Issue of Cell Phone Searches - ABC News:
• National Journal:  Supreme Court is about to decide the future of cell phone privacy
• Reuters: US Justices weigh limits on cell phone searches
• The Wire:  Looks like the Supreme Court Brushed up on Tech Lingo for this Cell Phone Privacy Case
• Electronic Privacy Information Center (EPIC) - Riley v. California

I'm disappointed that my state, California is actually defending themselves in this case.  The state depends upon the electronic, internet and semiconductor industry for most of its growth, and it appears that they could put a damper on growth if they won this case --which I believe is clearly a violation of citizen privacy.  I'm also disappointed that the Obama administration is defending the Government's right to search all of anyone's cell phone for any trumped-up charge.

Police searches for years have focused more and more on the electronics, and it appears that the trend will continue.  Searches, for other than illegal drugs, have moved from searching file cabinets and desk drawers to hard drives.  Searches for pornography, drug sales, and terrorism plots have all moved to the computer data bases.  Immigration and customs officials have been searching laptops and hard drives on routine basis.  This type of "fishing expedition" done by police often turns up some sort of violation that allows the police to charge an individual with a crime.

Since many of us now have "our whole lives" on our computer --and most are moving it towards the cell phone, this random search could find chargeable offenses such as income tax violations, child support violations, or even building code violations.  From our phones we can now access our bank & investment accounts, our address book, the locations we've been, all phone calls and text messages, all photos,  all email, income tax filings and records, all our music, books, videos, and web site visits

It is easy to sympathize with the situation the police are in.  They are rated upon their effectiveness.  If they pull someone over and don't find something to charge them with, they have, in effect, wasted their time.  They really want to stop crime, but are also rated on how many "busts" they score, and how much fine revenue they bring in for their city, county or state. They want to get as much bang for the taxpayer's "buck" they can get --that means writing tickets, citations, or making arrests.  Looking through a citizen's cell phone is probably a quick and easy way for them to find something to write a citation for.  Even if the Supreme Court does decide that the police need a search warrant to go through a person's phone, they still will use the argument:  If you have nothing to hide, why don't you let us quickly search your phone --if we have to get a search warrant, you'll have to stand out along side this highway for an hour or so until someone brings a warrant --and this will be much quicker!
Some privacy problems may not seem too important in a metropolitan area where it is unlikely that you will ever see the same police officer twice.  However is rural or small town areas, everyone knows everyone.  Friendships and grudges can last a long time.  Police are more able to "get even" with old rivals, lovers who have done them wrong, or business competitors of family members.

There are a lot of ancillary questions about police taking and searching a cell phone or laptop:

1. How long can the police keep the cell phone?  While in their possession, are police responsible for any damage to hardware, software or files? 
2. Do they provide citizens with another phone to use while they have yours?  If they have taken all of your files and records within the phone, can they provide you a copy back to use -- some business are dependent upon it.  
3. Do citizens have to give police their pass code, or finger print scan to be able to access their phone?  Are there penalties if they don't provide that access?  My phone has an SD memory card that can hold a lot of files.  Will we also have to provide that chip?  If we have multiple chips, will we have to provide all of them?  
4. Do you have to give police passwords so they can get onto your "cloud" files from your cell phone?  In fact, a lot of the information that appears to be on the phone, is often, actually on a server accessible from the phone. 
5. Are police permitted to crack your passwords to go through your phone, laptop hard drive, or cloud files?
6. How are we, as citizens, protected from police sneaking files or records onto our phone or laptop that could incriminate us?  There are strict protocols for crime scenes, but probably not for cell phone searches.
7. Are police permitted to make a copy of everything on your phone, hard drive, or cloud?  How will the integrity of that copy be maintained?

I believe that the Supreme Court has a very tough challenge in making this decision.  I hope they agree to error on the side of freedom vs police state.  We've lost too much freedom and privacy lately.  Police argue that they need these powers to fight crime.  However crime is down --way down in the US and the world.  If recreational drugs weren't illegal they would have nothing to do, and they know that they would need less than half of the existing numbers of police, prosecutors, judges, bailiffs, court reporters, prisons and prison guards --all part of the "business" they are in.