Can the cops search your phone without a warrant? The Supreme Court intends to weigh in.

January 18

(AP Photo/ Evan Vucci)

The Supreme Court said Friday it would rule on two cases that will determine whether police can search suspects' cell phones after they've been arrested.

The twin rulings are likely to have broad implications for electronic privacy. Although a 1973 court case found that it was legal for law enforcement officers to perform a search of any containers on an arrestee's body — in order to determine whether the suspect was armed or carrying destructible evidence — the sheer amount of data carried on a mobile device these days makes it a potential source of valuable information to law enforcement agents.

On Aug. 22, 2009, David Riley was pulled over by San Diego police for driving with expired license plates. When officers inspected the vehicle, they discovered loaded firearms and put Riley under arrest. Officers then searched Riley's smartphone, learning of his connection with gangs and other gang members. That evidence, which included photos and videos from the phone, helped lead to Riley's conviction. The case is Riley v. California.

The second case in question, U.S. v. Wurie, involves the warrantless search of a simple flip phone and its call log. Brima Wurie, a Boston man, was arrested on suspicion of dealing drugs. When searched by police, Wurie turned up two phones. Officers used the call log from one of those phones to locate Wurie's home, search it, and find more drugs and a firearm — a discovery that resulted in additional charges.

"Although the two cases raise the same constitutional issue, the Court did not consolidate them for review, so presumably there will be separate briefing and argument on each," wrote SCOTUSblog's Lyle Denniston in a blog post Friday.

According to Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, the declining share of Americans using flip phones puts a greater weight on the outcome of Riley's case.

"If you're going to decide the issue, you should decide it as it pertains to a smartphone, because it's what a majority of Americans are carrying," said Fakhoury. "If the court says you can make a narrow search of a flip phone, the question is, how do you apply that to a smartphone? Can you look at photos? Text messages? … How far into the phone can you go?"

Brian Fung covers technology for The Washington Post.
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