Cell Phones, Searches, and Seizures: How a Boston Case Will Establish Precedent for High-Tech Devices under the Fourth Amendment

Last Tuesday, the U.S. Supreme Court heard oral argument in a potentially groundbreaking case with close ties to Boston.  In United States v. Wurie, a case originating in South Boston, the Justices will interpret the Fourth Amendment, which prohibits unreasonable search and seizure.  In 2007, Brima Wurie was arrested for selling drugs in a Dorchester Avenue parking lot.  After he was picked up by the police, his cell phone rang from a number identified as his home.  The police traced the number to a house which they then searched with a warrant, finding drugs and a gun.

The issue is whether the police violated the Fourth Amendment by “opening” Wurie’s cell phone.  The Fourth Amendment traces its roots to the American Revolution, when British soldiers were permitted to search and seize essentially anyone for any reason.  Protection against unreasonable search and seizure has become a founding principle of our Constitution and our way of life, protecting our safety and privacy, even for those accused of crimes.

There is a great deal of case law defining just what is and isn’t reasonable in the area of search and seizure.  Many warrantless searches are allowed in connection with arrests in order to protect officers and prevent the destruction of evidence.  However, cell phones and other hi-tech devices complicate the issue because of the massive amounts of data they contain and their advanced capabilities, such as activating a potentially dangerous remote device.  Complicating matters even further, there is technology available that can remotely wipe a cell phone’s memory, so police wanting to search a phone may have to carry it in special bags or try to access it in specially equipped rooms that would block such signals.  There are questions about the reliability of this type of technology and the infrastructural capabilities of police forces around the country to address them.

At oral argument, the federal government argued for a bright line rule – that cell phones should be subject to unwarranted searches just like an arrestee’s wallet or personal effects.  The Justices seemed reluctant to go this far, noting the extreme amount of information, much of it highly personal, that police officers could access for even the most minor crime.  However, they also recognized that this information could be useful for police in solving and preventing crime and that criminals often make use of such technology to further their illicit ends.  Thus, the Justices spent much of oral argument discussing potential compromises, though none were forthcoming at the end of their debate.

We look forward to a decision by the end of the summer to address this issue – one that will balance personal privacy with public safety.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association