Supreme Court Says Police Can't Go Snooping Through Your Cell Phone Following An Arrest Without A Warrant

The Supreme Court handed down a unanimous ruling today that strikes a blow for Fourth Amendment advocates in the digital era. The decision today in Riley v. California written by Chief Justice John Roberts declined to extend the permissible searches made incidental to a custodial arrest to the digital data found on an arrestee's cell phone.  Data stored on the phone the Court concluded cannot be used as a weapon to harm an arresting officer.

This decision actually involved two separate cases. In one case, the police charged a defendant on weapons charges after making a routine traffic arrest. After searching the data on his cell phone, the police found information it later used to charge him in connection with a gang-related shooting. In the second case, police made an arrest of an individual after witnessing him make a drug sale. A search of his cell phone turned up information about calls received from a particular address, which information they used to obtain a search warrant of the property associated with the person who made the calls where they found a large stash of drugs. The defendants in both cases were convicted at trial based on evidence obtained by police without a warrant from their cell phones.

The government claimed the risk of remote wiping of data from the cell phone following the arrest justified a warrantless search, but the Court noted that law enforcement has available technology for preventing the destruction of evidence in this manner. The Court reasoned that substantial privacy interests outweighed any necessity the police might have in searching the data on a phone as a general practice. The Court observed that data on the phone involves many distinct types of information, the phone's capacity allows just one type of information to convey far more than previously possible and the data can date back many years.

The ruling today does not prevent a search of an arrestee's cell phone; it simply says the police will have to obtain a search warrant if it wants to search the phone unless the police can demonstrate the existence of exigent circumstances. Examples offered by the Court of exigent circumstances included: to prevent the imminent destruction of evidence; to pursue a fleeing suspect; and to assist persons who are seriously injured or are threatened with imminent injury.

One wouldn't think today's decision bodes well for the increased use of technology like Stingray where police are grabbing cell phone data from multiple users within a geographic area, all without obtaining a search warrant. Both the Indiana State Police and the Indianapolis Metropolitan Police Department are utilizing this technology.

UPDATE: This Chicago Tribune here discusses the Chicago Police Department's use of Stingray-like technology and how this decision likely makes its use unlawful as a result of this decision.

Pence Supports State Police Collection Of Bulk Cellphone Data Without A Warrant

I can't same that I'm surprised by his comments, but Gov. Mike Pence has finally spoken out about a recent Indianapolis Star report on surveillance software purchased by the Indiana State Police earlier this year that permits the agency to capture in bulk cellphone data within a particular radius from where it is being operated without a warrant. Pence thinks the unwarranted, unconstitutional snooping is acceptable, showing just how willing he is to violate the oath he took as governor to uphold the constitution, not to mention the oath he took as an attorney admitted to practice law in this state.

Speaking with reporters, Pence said he met with police officials last Thursday for a briefing after an Indianapolis Star report revealed the agency had acquired a “Stingray” device for $373,995.

“I believe this technology is in the interest of public safety, and I believe it has enhanced our ability to both protect and save lives,” Pence told reporters. “I was informed that in the limited number of cases where this technology has been used that it has only been used with strict judicial oversight.”

But when pressed, Pence didn’t answer repeated questions about whether the agency obtains search warrants before turning on the devices.

Pence’s press secretary Kara Brooks referred further inquires about the devices to State Police spokesman Dave Bursten, who didn’t immediately return a message this morning from The Star.

Previously, Bursten has declined to answer questions about the devices and would not say whether the agency uses Stingrays without a search warrant.

The NSA compels telephone companies to turn over telelphonic metadata in bulk, a step it claims is necessary to protect national security interests, which today means protecting us from terrorists. A federal district court ruled this practice unconstitutional. Of course, most terrorists are funded, trained and directed by the CIA so their activities are curiously never detected in advance by the NSA's snooping. The accused Boston Marathon bombing suspects are perfect examples. Despite being sponsored for immigration to this country by an uncle who works for the CIA and being placed under constant monitoring by the FBI, the two young Tsarnaev brothers we are told somehow managed to build, place and detonate two "bombs" in an area crawling with police and extra security. (Yes, I deliberately put the word in quotes because only made-for-movie special effect bombs were exploded next to crisis actors who were paid to pretend to have suffered injuries, which is self-evident to anyone who views the video of the blast scenes with open eyes).

It's total nonsense for Pence to suggest that a civil police agency has any need to collect cell phone data in bulk for any legitimate law enforcement purpose. It's an unchecked fishing expedition of the worst order that can be used for all sorts of nefarious purposes, not the least of which includes spying on political enemies. No citizen of this state should trust the Indiana State Police to use this spying capability responsibly. Legislation is clearly needed to limit its use strictly to instances where it has obtained an order from a court based on a finding of probable cause, and to impose harsh penalties on those who would use it otherwise.

District Court Judge's Ruling Gives Glimmer Of Hope The Constitution's Bill Of Rights Still Has Some Viability

Legal scholars learned in Fourth Amendment jurisprudence welcomed a decision by D.C. District Court Judge Richard Leon today in Klayman et al. v. Obama, et al. holding that the NSA's bulk collection and analysis of telephonic metadata is an unreasonable search and seizure. Judge Leon stayed a preliminary injunction pending a certain appeal by the government to the D.C. Court of Appeals.

While many would agree with Judge Leon's opinion, the ruling is particularly noteworthy because of the identity of the plaintiff who brought this case (not the ACLU) and the conservative background of the judge who decided it. The lead plaintiff, Judicial Watch's Larry Klayman, is a staunch conservative activist viewed as a pariah by liberals. Judge Leon is a conservative jurist nominated to the federal bench by former President George W. Bush on the day before 9/11. He's a former classmate of Justice Clarence Thomas at the College of the Holy Cross, earned his LLM degree from Harvard, taught law at St. John's University School of Law, and worked as a senior attorney in the Reagan Justice Department before working on the Select House Committee that investigated the Iran-Contra affair. He also worked for two major D.C. law firms immediately before his appointment to the federal bench.

The government argued that the Supreme Court's 1979 ruling in Smith v. Maryland squarely permitted the NSA's bulk collection of telephonic metadata.  In that case, police had installed a pen register without obtaining a warrant, which revealed that the suspect had placed a phone call to a robbery victim on one occasion. The Supreme Court held that the defendant had no reasonable expectation of privacy with respect to the numbers dialed from his telephone because he voluntarily transmitted that information to the telephone company which maintained it as a business record. Judge Leon noted that the Supreme Court last year in U.S. v. Jones held that the placement of a GPS tracking device on a vehicle to track its movement for nearly a month without a warrant violated the defendant's reasonable expectation of privacy despite the fact that the Court had previously ruled in 1983 that a tracking beeper placed on a vehicle did not constitute a search within the meaning of the Fourth Amendment. The Court distinguished the earlier case from the Jones decision because it was "a short-range, short-term tracking device" as opposed to "constant, month-long surveillance achieved with the GPS device attached to Jones' car."

Judge Leon noted that the NSA bulk data collection of telephonic metadata involved "the creation of a historical data base containing five years' worth of data" with the "very real prospect that the program will go on for as long as America is combating terrorism, which realistically could be forever!" "[T]he almost-Orwellian technology that allows the Government to store and analyze the phone data of every telephone user in the United States is unlike anything that could have been conceived in 1979," Leon reasoned. "The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best in 1979, the stuff of science fiction."

Judge Leon also persuasively distinguished 1979 as a time when people still relied on single land line phones in their home as opposed to today when multiple family members within a household carry cell phones everywhere they go that serve multiple purposes beyond simple use as a telephone. "Thirty years ago, streets were lined with pay phones. Thirty years ago, when people wanted to send "text messages," they wrote letters and attached postage stamps." He concluded, "Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago . . . This rapid and monumental shift towards a cell phone-centric culture means that the metadata from each person's phone 'reflects a wealth of detail about her familial, political, professional, religious and sexual associations.'"

Public Access Counselor Declines Reporter's Public Records Request For Indiana State Police's Use Of Warrantless Tracking Technology

An Indianapolis Star reporter's public records request of the Indiana State Police to produce purchase orders and invoices regarding any technology it may have purchased from Florida-based Harris Corporation that can be used to conduct warrantless mobile phone tracking was denied on the grounds that public disclosure of the police agency's use of the technology would have "a reasonable likelihood of threatening public safety." Hah! It's public knowledge that the FBI uses Harris' Sting Ray mobile phone tracking system, but Indiana's Public Access Counselor Luke Britt agrees with Capt. David Bursten that it's none of your damn business what kind of warrantless tracking devices the police agency is using. While he agreed with the Star reporter's contention that "contracts and other vital financial information that show how government agencies spend tax dollars and are traditionally among the most readily available public documents at an agency," he's giving ISP the benefit of the doubt because "the nature of this records request is particularly sensitive." Courts are still trying to sort out the potential for Fourth Amendment violations as a warrantless search. The ACLU applauded a decision of the Third Circuit Court of Appeals today holding that the Fourth Amendment requires law enforcement agencies to obtain a search warrant based on probable cause to attach a GPS tracking device to a car.

Hat tip to Indiana Law Blog.

What You Aren't Being Told About Government Snooping Into Reporters' Communications

James Corbett's "The Eye Opener" points out something about government spying that the American people are clueless about. In a discussion of the recent controversy over the Obama administration's efforts to search e-mail and phone records of members of the media in an effort to learn the source of government leaks, a former government official makes an admission that should have every American alarmed. Former FBI counter terrorism chief Tim Clemente acknowledges that the Justice Department really didn't need to obtain a search warrant to go snooping into the e-mails and phone records of reporters. Under a little-noticed law passed in 1994, the Communications Assistance for Law Enforcement Act (CALEA), the National Security Agency began capturing and storing all digitized communications, including all e-mail and telephone communications of every single American. These records are meticulously stored in a massive archived database in Utah where authorized federal law enforcement officials can snoop through any phone calls and e-mails you've made in the past. Now this information would not be admissible in a court of law to prove your guilt of committing a crime, but it allows Big Brother government to view the most intimate details of your life. Fishing expeditions can lead to targeting of Americans for further criminal investigation. Corbett's take on the surveillance of  AP reporters and Fox News' James Rosen is that the mainstream media outrage is contrived and is designed to hard wire the wholesale surveillance of the public into law.

Shocking Video Of Police Forcing Themselves Into Couple's Home Without A Warrant

This video has gone viral on YouTube showing Cotati California police officers breaking and entering the home of a couple after they received a call that the couple were arguing loudly inside. Both presented themselves at the door and said there was no problem, but the police ordered them out of the home at gunpoint. When they refused their request, police forced open the door and, as you can see from the video, use a taser on the woman. The Fourth Amendment protects us from unreasonable searches and seizures. Police are allowed to enter a home without a warrant only if exigent circumstances exist, such as to apprehend a fleeing suspect, to render emergency aid to someone inside the home, or to prevent the destruction of evidence of a crime. Reports of a couple yelling, which probably happens from time to time in most households, is not suggestive that domestic violence was taking place in the home. The couple appeared to show no threat of harming the officers so it is unclear why they felt justified in using a taser. You can bet that a lawsuit will be filed against these police officers and the city of Cotati, California.

Yet Another Arrest For Contempt Of Police

An Arkansas man is arrested by police after he recorded them conducting a traffic stop of a woman from the front yard of his home. While the man clearly goads the police officers by calling them Nazis, they escalated the matter by entering his property and coming into his garage to demand his identification. He was told by the police officer unless he provided identification to him, he would be arrested on any number of charges, including disorderly conduct and obstruction. While the man complies, albeit rudely as he raises 4th Amendment concerns, and provides his identification, the police still arrest him for disorderly conduct. The police even suggested he would be cited for a code violation for not keeping his grass mowed. Absolutely unbelievable. Don't these guys have anything better to do than pick fights that can't possibly win in the eyes of public opinion?

According to the Arkansas Blog, Jonesboro police searched Matt Harden's garage after arresting him and found a handgun, resulting in charges being brought against him for being a felon in possession of a handgun despite the fact that he had a license to carry a gun. He was held in custody for 24 hours before being released. A local prosecutor later dropped the bogus charges against Harden with an agreement by Harden not to bring civil litigation against the police department for violating his constitutional rights.

Indiana Supreme Court Abrogating Citizen's Right To Resist Unlawful Police Entry Into Home Making Headlines

It's not often that a decision by the Indiana Supreme Court gets national attention, but a case decided by Gov. Mitch Daniels' first and only appointee to the high court is getting noticed. The case could have been your run of the mill domestic case involving an argument between husband and wife where wife feels threatened, wife calls police, police respond to wife's call and proceed to haul husband off to jail. What else is new? A broad-sweeping abrogation of a recognized common law right to resist an unlawful entry of police into a person's home, however, has drawn a lot of attention to this case. Here are the basic facts in Barnes v. State:

Officer Lenny Reed, the first responder, saw a man leaving an apartment with a bag and began questioning him in the parking lot. Upon identifying the man as Barnes, Reed informed him that officers were responding to a 911 call. Barnes responded that he was getting his things and leaving and that Reed was not needed. Barnes had raised his voice and yelled at Reed, prompting stares from others outside and several warnings from Reed.

Officer Jason Henry arrived on the scene and observed that Barnes was ―very agitated and was yelling. Barnes ―continued to yell, loudly and did not lower his voice until Reed warned that he would be arrested for disorderly conduct. Barnes retorted, ―if you lock me up for Disorderly Conduct, you’re going to be sitting right next to me in a jail cell. Mary came onto the parking lot, threw a black duffle bag in Barnes’s direction, told him to take the rest of his stuff, and returned to the apartment. Reed and Henry followed Barnes back to the apartment. Mary entered the apartment, followed by Barnes, who then turned around and blocked the doorway. Barnes told the officers that they could not enter the apartment and denied Reed’s requests to enter and investigate. Mary did not explicitly invite the officers in, but she told Barnes several times, ―don’t do this and ―just let them in. Reed attempted to enter the apartment, and Barnes shoved him against the wall. A struggle ensued, and the officers used a choke hold and a taser to subdue and arrest Barnes. Barnes suffered an adverse reaction to the taser and was taken to the hospital.

At trial, Barnes' attorney wanted the jury to be instructed that he had the right to reasonably resist police from making a warrantless entry into his home based on a long-recognized right at common law but was denied the instruction by the trial court judge. The jury found Barnes guilty of resisting a law enforcement officer, battery on a law enforcement officer and disorderly conduct. The Indiana Court of Appeals ruled it error for the trial court to deny the instruction to the jury and ordered a new trial. In a 3-2 opinion authored by Judge Steven David, the Indiana Supreme Court reversed the lower court ruling and completely abrogated recognition of the common law right. “In sum, we hold that [in] Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law.” Apparently, none of the three justices or their clerks caught the grammatical error in their sweeping decision. Explaining the Court's ruling, Justice David wrote:

We believe however that a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. Nowadays, an aggrieved arrestee has means unavailable at common law for redress against unlawful police action. E.g., Warner, supra, at 330 (citing the dangers of arrest at common law—indefinite detention, lack of bail, disease-infested prisons, physical torture—as reasons for recognizing the right to resist); State v. Hobson, 577 N.W.2d 825, 835–36 (Wis. 1998) (citing the following modern developments: (1) bail, (2) prompt arraignment and determination of probable cause, (3) the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies). We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest—as evident by the facts of this instant case. E.g., Hobson, 577 N.W.2d at 836 (―But in arrest situations that are often ripe for rapid escalation, one’s measured’ response may fast become excessive.). Further, we note that a warrant is not necessary for every entry into a home. For example, officers may enter the home if they are in ―hot pursuit of the arrestee or if exigent circumstances justified the entry. E.g., United States v. Santana, 427 U.S. 38, 42–43 (1976) (holding that retreat into a defendant‘s house could not thwart an otherwise proper arrest made in the course of a ―hot pursuit‖); Holder v. State, 847 N.E.2d 930, 938 (Ind. 2006) (Possible imminent destruction of evidence is one exigent circumstance that may justify a warrantless entry into a home if the fear on the part of the police that the evidence was immediately about to be destroyed is objectively reasonable.). Even with a warrant, officers may have acted in good faith in entering a home, only to find later that their entry was in error. E.g., Arizona v. Evans, 514 U.S. 1, 11 (1994); United States v. Leon, 468 U.S. 897, 922–25 (1984). In these situations, we find it unwise to allow a homeowner to adjudge the legality of police conduct in the heat of the moment. As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance.

Justices Brent Dickson and Robert Rucker offered separate, stinging dissenting opinions. Justice Dickson wrote, “In my view, the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.” "In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations," Justice Rucker opined. "There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home."

A Drudge Report headline linking to an Indiana newspaper story on the Court's ruling reads, "Indiana court rules Americans have no right to resist illegal police entry into home." The Northwest Indiana Times story begins:

Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.


In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry . . .

Professor Ivan Bodensteiner, of Valparaiso University School of Law, said the court's decision is consistent with the idea of preventing violence.


"It's not surprising that they would say there's no right to beat the hell out of the officer," Bodensteiner said. "(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer."

I think most legal observers would agree with Professor Bodensteiner's defense of the case as serving to prevent violence, particularly in a case such as this one where tempers had already flared as a result of a domestic dispute. It's the total sweeping aside of the common law rule that is unsettling. "Indiana Supreme Court issues death warrant for Fourth Amendment" blares a headline at Pajamas Media. "This case may not get to the Supreme Court of the United States; that requires time and money," writes Dan Miller. "It should get there because it purports to abrogate — in Indiana — prior Supreme Court rulings on the Fourth Amendment and because cases embodying bad law tend to breed and multiply." I suspect the case may get even more attention in the days ahead if Gov. Daniels decides to run for president for no other reason than the decision is authored by his first and only state supreme court appointee.

Hat tip to Indiana Law Blog.

UPDATE: Hot Air weighs in with this critical take on the decision:

One has to wonder what part of “unlawful” Justice David doesn’t get. What part of the right of the people to “be secure… shall not be violated” wasn’t taught to him in law school.


How secure is anyone in their “persons, houses, papers and effects” if, per David, a police officer can waltz into any home he wants to “for any reason or no reason at all?”

The given reason by the Justice is resistance is “against public policy?” What policy is that? For whatever reason, most believe our public policy as regards our homes is set by the 4th amendment to the US Constitution. Since when does Indiana’s “public policy” abrogate the Constitutional right to be “secure in our persons, houses, papers and effects”?

Additionally, most would assume it is the job of the police not to “escalate the level of violence”, not the homeowner. Like maybe a polite knock on a door to attempt an arrest instead of a battering ram and the violent entry of a full SWAT team to arrest a suspected perpetrator of a non-violent crime. Maybe a little pre-raid intelligence gathering, or snagging the alleged perp when he leaves the house to go to work, or walk the dog, or go to the store.

Now citizens in Indiana are to give up their 4th Amendment rights because it might “elevate the violence” if they attempt to protect themselves from unlawful activity? Sounds like the “don’t resist rape” nonsense that was once so popular.

It looks like someone else has picked up on the rape analogy made in the Hot Air post. Len Rockwell pens a post entitled, "Indiana Supreme Court upholds the Rapist Doctrine: Don't resist--you'll just make it worse."