DOJ Whines That A Warrant To Search A Mobile Phone Makes It More Difficult To Catch Criminals

The US government has entered its reply brief in the US vs. Wurie case and its argument in favor of warrantless searches of arrestees' cell phones contains some truly terrible suppositions. Here's a brief recap of the situation in this case:

In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from "My House." They opened the phone to determine the number for "My House." That led them to the man's home, where the police found drugs, cash and guns.

The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man's argument, ruling that the police should have gotten a warrant before accessing any information on the man's phone.

As was noted by Orin Kerr at the Volokh Conspiracy, a lot has changed since 2007. The phone the police searched seven years ago was a grey flip phone with limited capabilities. Unfortunately, the Court is using this case to set precedent for a nation full of smartphones, which contain considerably more data and are roughly the equivalent of a person's home computer, rather than the address book the government refers to in its arguments.

The government agrees that times are changing but counterintuitively argues that only law enforcement is being negatively affected by this. Every argument in favor of warrantless searches contains some sort of lamentation about how tech-savvy criminals will be able to cover up or destroy evidence contained on their phones before the police can crack open these new-fangled address books and copy everything down.

[T]he Founding officers have conducted full evidentiary searches of individuals lawfully arrested on probable cause to find evidence of the crime of arrest, including the examination of objects, containers, and written material; (ii) that in an unbroken series of decisions from 1914 to 2013, this Court has recognized that this historical search authority applies categorically; and (iii) that if an officer does not search an unlocked cell phone as soon as she finds it, a significant risk exists that the police will never be able to recover evidence contained on the phone.

This speedy dismantling of the Fourth Amendment pursuant to law enforcement's desire to secure is only the preamble. As the reply brief rolls on, the government makes even more questionable assertions that view smartphones and technological advances as little more than escape vehicles for alleged felons. (h/t to Hanni Fakoury for pointing this part out.)

[S]earching an arrestee's cell phone immediately upon arrest is often critical to protecting evidence against concealment in a locked or encrypted phone or remote destruction.The numerous party and amicus briefs in these cases have not seriously undermined that fundamental practical point. Although the briefs identify various techniques to prevent the remote-wiping problem (none of which is close to perfect), they barely address the principal problem that the government identified: automatic passcode-locking and encryption.

The government argues that impartial technological advancements somehow favor criminals. As it sees it, the path to the recovery of evidence should not be slowed by encryption or wiping or even the minimal effort needed to obtain a warrant. The police are presented as forever behind the curve, despite evidence otherwise. Without a doubt, there's an ongoing arms race between deletion technology and recovery technology, but the gap between the two isn't nearly as large as the government portrays it.

But what really deserves attention here is the government's antipathy towards encryption and other protective technology. Together with the paragraph above, the government argues that any smartphone with the potential to be encrypted/wiped should automatically be relieved of warrant requirements. Encryption and wiping technology are inherently evil in the government's eyes.

But even if amici were correct in their premise that threats from third parties cannot justify the search of a cell phone incident to arrest, they ignore the principal justification in the government's opening brief—the threat of passcode-locking and encryption—as well as newer "geofencing” technologies that will enable individuals to preset their phones to automatically wipe in certain circumstances. Those tactics are not the actions of third parties, but rather automatic functions that an arrestee—potentially with police investigation in mind—can program into his phone.

Criminals might use these methods. That's a given. But what about anyone worried about their phone being stolen, especially considering the wealth of information stored on it? Does the government plan to take a stance against law enforcement's push for cell phone "kill switches?" This, too, could result in law enforcement being deprived of the opportunity to browse a person's smartphone while they sit in a holding cell awaiting booking or arraignment.

But it's the underlying assertion that such technology would be deployed mostly by criminals that's the most troubling. It's no secret government investigative and security agencies don't care for encryption. The NSA holds onto encrypted data "just in case," under the guise of counterterrorism. This argument puts non-criminal citizens in a unwelcome position: the presumption of hidden criminal activity whenever a police officer encounters an encrypted phone.

What's equally as worrying is the government's suggested remedies. The government brushes aside civil liberties concerns and points out that wronged citizens have plenty of recourse... provided they're willing to be arrested, charged, jailed until their court date and successfully argue their rights were violated in front of a judge.

The government first sets up the "remedies" by suggesting law enforcement will have to develop steps to ensure they're not getting more than they're looking for and that they're not intercepting communications while in possession of the phone. It suggests moving the phone to "airplane mode" before searching and encouraging officials to craft guidelines to address privacy issues. The nudge towards belatedly addressing constitutional issues is backhanded and backwards, especially considering law enforcement's usual attitude towards these considerations: protocols are only developed if and when public outcry reaches unacceptable levels.

The latter suggestion -- suppression of evidence -- places a delusional amount of faith in the justice system. Even worse, it places the burden on the arrested to ensure law enforcement follows its own rules.

Ultimately, law enforcement agencies will need to develop protocols to address that issue, and defendants will be able to enforce the limitation through suppression motions. No information indicates that agencies are not up to that task.

"No information," eh? There's plenty of evidence to the contrary.

Police the police at your own expense while under the threat of imprisonment. Yeah, that should go just fine.

The government wants a warrant-free ride for its law enforcement officers, who are apparently forever behind the tech curve. The argument against warrants doesn't get much more ridiculous than the following.

Respondent and his amici have even less to say about a scope-limited approach, in which officers would be permitted to search cell phones incident to arrest only to the extent reasonably necessary to serve the legitimate law-enforcement interests of finding evidence of the offense of arrest, identifying the arrestee, and ensuring officer safety. Under that approach, courts would remain vigilant against uninhibited "exploratory" searches that do not serve those interests.

Once again, your civil liberties can be argued... after the fact... in court.

Under a scope-limited approach, an officer could not peruse every area of a phone on the off chance that evidence of some crime might be found there. Rather, the officer would be required to articulate a specific reason to believe that evidence relevant to the offense of arrest, officer safety, or arrestee identity would be found in each area of the phone she searched.

Specific reasons that evidence might be relevant sounds a whole lot like the sort of things that would be present on a warrant request. Except in this case, the officer would have the luxury of arguing that after searching the phone. It's like asking for warrant after tossing the house. But the government's not done. It goes farther and attempts to portray warrants as the actual enemy of the Fourth Amendment.

If respondent's rule is adopted, at the time a magistrate issues a warrant, neither officers nor the magistrate will know what files or applications the phone contains. A typical warrant would identify information sought in the search (e.g., drug ledgers, customer lists, financial records, and evidence of a suspect's use or ownership). Officers would then necessarily need to conduct at least cursory searches of relevant areas of the phone to determine whether they might contain the object of the search—a process indistinguishable from the scope-limited approach the United States has suggested. A warrant-based approach would thus not limit the scope of any ultimate search, as compared to the scope-limited approach described above.

In the government's comparison, both are equally intrusive, but only one keeps cops from doing their job.

Rather, the primary function of a warrant requirement would be to preclude officers from searching a phone when they have reason to believe that it contains evidence of crime, but cannot establish the higher standard of probable cause—or cannot obtain a warrant before a phone locks and becomes inaccessible.

That's odd infuriating. I could have sworn warrant requirements were in place to protect citizens' Fourth Amendment rights, not to somehow screw cops out of diving into someone's cell phone just because they happened to be carrying it on their person. The Fourth Amendment protections are there for a reason -- for this exact reason: to prevent unreasonable searches.

Replace anything in that sentence and see if it still looks like the sort of thing the government of a free nation should be arguing.

Rather, the primary function of a warrant requirement would be to preclude officers from searching a RESIDENCE when they have reason to believe it contains evidence of a crime, but cannot establish a higher standard of probable cause -- or cannot obtain a warrant before the DOOR CLOSES.

The government views the Fourth Amendment as little more than a criminal's best friend. This is the entity that is supposed to protect civil liberties, not argue them away as pesky impediments to the pursuit of bad guys.