Five days before the Supreme Court ruled that an arts and crafts chain deserves greater protection under the law than the women it employs, the gang of nine actually got one right. Preceding the inexplicable 5-4 Burwell v. Hobby Lobby split-decision, which made clear that old men in black robes increasingly lose their marbles when the discussion turns toward babies and ovaries and baby Jesus, the judges unanimously—and somewhat stunningly—agreed on June 25 to advance civil rights into the digital age.
Taking into consideration two cases, including Riley v. California, which focused on the overreaching search of a Southern California gangbanger’s Samsung Instinct M800, Chief Justice John Roberts authored the opinion that a warrant must now be granted before law enforcement can search a person’s smartphone, as it often contains information vastly exceeding the scope of most criminal investigations. The decision reaffirmed the 4th Amendment, which prohibits unreasonable search and seizure.
“Indeed,” Roberts wrote, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form unless the phone is.”
He added the snarky analogy that suggesting a search of a person and smartphone is “materially indistinguishable” is “like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.”
The ruling will likely have repercussions that extend to the NSA’s broad domestic data gobbling and snooping, but for now it has forced law enforcement agencies to revise their policies on seizing evidence during an incident to arrest.
San Jose Inside has obtained an internal bulletin San Jose police chief Larry Esquivel sent throughout the department July 14, explaining that while it has been “common practice” to search suspects’ cell phones after an arrest, which often produced call logs, contacts, e-mails, photos, text messages and more, the status quo has now been found unconstitutional.
“Department members are thus reminded that a search of a cell phone does not fall under a ‘search incident to arrest,’” Esquivel added. “Cell phone searches require a warrant or an exception to the warrant requirement. Based upon this court decision, in order for your warrantless search to be upheld, you must explain and document specific factors and circumstances for the exception.”
Through a series of emails and interviews with SJPD, San Jose Inside has learned that the department has seven active Cellebrite machines, which are used to extract information from smartphones seized as evidence. Originally designed to transfer and/or recover information from old phones to new devices, these machines have been used to supplement local law enforcement investigations for the better part of a decade. The Santa Clara County Sheriff’s Office has four Cellebrite machines, amongst other local agencies that use the technology. The machines, which cost about $4,500 and have $999 annual licensing fees, according to SJPD, are sophisticated to the point that they can comb for data and messages that were erased.
Sgt. Todd Lonac, who carries out Cellebrite extractions for SJPD’s homicide unit, told San Jose Inside that the process takes between a few minutes to a few hours depending on the amount of data on a phone. The information, broken down into a pdf or text file, is then easily transferred on to a thumb drive, DVD or external hard drive. “I could have a college intern doing it in about 10 minutes,” Lonac said.
How pervasive and effective the use of smartphone extractions has been, however, is impossible to know. SJPD and other local law enforcement agencies told San Jose Inside they do not track the use of Cellebrite machines and any extracted data can only be found in individual case files.
While the legal search of smartphones for criminal activity is not under debate, one item in Esquivel’s letter, which San Jose Inside shared with local attorneys and civil rights advocates, has spurred concerns about SJPD overreach when it comes to the rights of individuals on probation or parole. In the bulletin, the police chief noted that “searches of cell phones belonging to people [on parole or probation] are still permissible.”
Esquivel’s letter added: “We expect the defense (attorneys) will contest this, as the Riley decision seems to place great weight on the increased expectation of privacy based on the amount and type of information people carry on their cell phones. However, other court opinions interpreting the scope and effect of search clauses have routinely held that someone who accepts probation, parole, or [Police Record Checks] and the search conditions that go with those, have already given up privacy rights in almost everything: their person, their homes, their cars.”
Andrew Gutierrez, a research supervisor who helps devise legal arguments within the Santa Clara County Public Defender’s office, challenged the chief’s wording.
“The Riley opinion was a very eloquent and strong, unanimous affirmation of the right to privacy,” Gutierrez said. “Given that level of privacy on the phones, I think that the memo, or the recommendation, doesn’t give as much weight to the privacy concerns voiced by the Supreme Court.
“It’s true, if you’re on probation or parole you have diminished expectations of privacy, but it’s not the case that you’ve given up all control of your rights to privacy—at your home or your person or cars.
“It seems to say if somebody is on probation or parole, you can search them for anything to your heart’s delight. That, to me, is concerning, because there are so many people in this county who are on some form of supervision, and everyone has a smartphone these days.”
Gutierrez’s interest in protecting clients’ 4th Amendment rights is not limited to cell phone searches. On Monday, he said, he filed Public Records Act (PRA) requests with the state’s 57 Superior Courts outside of the county. The project was spurred by an earlier request, in which Gutierrez said he found that defense motions to suppress improperly acquired evidence—which basically requires a citation of the 4th Amendment—have been denied by Santa Clara County judges at a rate of more than 97 percent. This includes cases handled by private and public defense attorneys, as well as felony and misdemeanor cases, Gutierrez said.
“We’re about to issue an amber alert for the 4th Amendment,” he quipped. “I guess the question I have is: We’re a county of 1.8 million people. Is this (97 percent rate) statistically significant? Is it possible to have virtually no 4th amendment violations?”
Gutierrez expects to receive data from the rest of the state’s court systems in the next two weeks. Unsure what to expect, he said, the public should have concerns if evidence is being inconsiderately approved.
“If that’s a generalized belief in the police force, does that translate to officers feeling greater license to go into the red zone with the public and not worry about their conduct, because they have no fear of the criminal justice system of holding them accountable?” Gutierrez said. “I think it’s something people should talk about.”