On June 25th, the U.S. Supreme Court handed down a resounding landmark ruling in two separate high profile criminal cases, making it mandatory that police must first get a warrant to search a person’s cellphone. The victory and its broad impact against “unreasonable search and seizure” under the Fourth Amendment protection, scored a major victory for the privacy rights for millions of cellphone users. Technology has outpaced the historical “search and seizure law” written into the Constitution by America’s Founding Fathers.
Cellphones, Chief Justice John Roberts, stated in his ruling, were, “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
The court’s decision concluded “that cellphones and smartphones with extensive memory can store millions of pages of personal texts, hundreds of photos and videos, which can form a revealing biography of a person’s life, and that the Fourth Amendment must protect personal, private possessions.”
“A cellphone search, Roberts opined, would typically expose to the government far more than the exhaustive search of a house.”
To keep warrantless searches of cellphones intact, and that cellphones don’t deserve Fourth Amendment protection, Donald Verril Jr., the Obama adminstration’s top Supreme Court lawyer argued that, “cellphones are no different from anything else a person may be carrying when arrested, and that cellphones are now critical to tools in the commission of a crime.”
In a 9-0 decision that left cellphones ringing across the nation, the justices concurred the police illegally searched the cellphones in separate cases involving U.S. vs. Brima Wurie, a Boston area man sentenced to federal pen for 22 1/2 years on drug related charges, and the second case decided was that of David Riley, a California man serving 15 years on charges of attempted murder and a gun charge. [ Scotus blog on Riley ]
This article will address the detailed specifics in Wurie’s case due to a warrantless search of Wurie’s cellphone that subsequently led to narcotics being found inside Wurie’s home. [ United States vs. Wurie ]
Courts are bracing for whether or not the decision will be applied retroactively to thousands of similar prosecutions where defendants were convicted as a result of warrantless evidence used against them that was taken from their cellphones or mobile devices. If retroactive status is applied, thousands of inmates depending on circumstances could either go free, be granted a new trial – or face resentencing.
As the ruling stands, according to legal experts, neither Wurie or Riley, or defendants, whose cellphones may have been illegally searched, and assuming the evidence from the phone played a vital role in convicting them, none of these similar cases will benefit from the Supreme Court decision. Lawyers say this is because during any arrests when police make a search of a person’s property like cellphones, purses, wallets, or even a vehicle, they are within the immediate perimeters.
Appellate specialist lawyer Charles Sevilla, says that, “warrantless searches by police during the arrest of a suspect or an individual already charged falls under (the search incident to arrest doctrine),” a statute that derives from Chimel VS. California. “The purpose of the search incident to arrest is an exception of the general rule that doesn’t require an officer to obtain a warrant, and a warrantless search is allowed to protect the officer while searching for weapons or contraband that a suspect may possess – or to prevent the destruction of evidence.”
Writing a commentary in the Washington Post, lawyer Orin Kerr, who serves as a professor at George Washington Law School, explains why the decision in Wurie and Riley’s case may not be granted retroactive status to other similar defendants. “The culprit is the continued expansion of the good-faith exception in Davis Vs. United States, where the Supreme Court ruled that the exclusionary rule is not available if a search was authorized by ‘binding appellant precedent’ at the time the search occurred.”
“Lower courts,” Kerr explained, “have interpreted Davis to apply broadly even when no binding appellate precedent authorized the search. Therefore,” Kerr further writes, “Under these cases, relatively few defendants will get the benefits of the Riley-Wurie rule.”
But the opinion of the Supreme Court minced no words in separating such devices from other property a person might have on them when detained by police.
Chief Justice John Roberts, said, “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.” “The Fourth Amendment protects against unreasonable search and seizure,” the Chief Justice explained.
The ruling will certainly apply to searches of tablets, laptop computers, and may even apply to digital information held by third parties like phone companies.
“The fact that technology now allows an individual to carry such information in his hands does not make the information any less worthy of the protection for which the Founders fought,” Chief Justice Roberts wrote in his decision. “Our answers to the question of what police must do before searching a (cellphone seized incident to an arrest) is accordingly simple – get a warrant.”
“I believe the court got it right,” says Lewis Rice, a retired DEA Special Agent in Charge of the Fed’s New York Office. Rice added, “the court must balance our right of privacy against law enforcement ability to aggressively investigate criminal organizations.”
Rice points out the vital fact that although law enforcement need a warrant, that the Supreme Court ruling does, according to the ex-DEA Special Agent, allow a warrantless search of a mobile device depending on the immediate situation.
“The court left open the option for law enforcement, under exigent circumstances, to search a cellphone without a warrant,” Rice stated during a Drug War Chronicle (DWC) interview.
One court in Michigan recently felt the chilling effects of the Supreme Court ruling when Kent County Circuit Judge Mark Trusock tossed out felony drug charges on July 16th against 29-year-old Matthew Macnaughton. Grand Rapids police stopped Macnaughton for running a red light and the officer decided to arrest him for driving without a license. While Macnaughton sat in the rear seat of the patrol car, the officer, examined Macnaughton’s smartphone just when a text message from a person came across the screen asking to buy drugs.
Amazed over how the phone worked, the officer asked Macnaughton, “What kind of phone is this?” “You must be a drug dealer.”
Citing the Supreme Court decision in Wurie and Riley, Macnaughton’s attorney, Chris M. Wirth, argued that digital contents of a cellphone cannot be searched in the course of a routine arrest, and that there were no circumstances requiring immediate action. Prosecutor argued that Macnaughton’s case didn’t apply to the Wurie-Riley decision because Macnaughton’s arrest occurred in February – prior to the high court handing down the cellphone decision.
In this case, Matthew Macnaughton may have beat the drug rap but the prosecutor’s office seized his 2005 Lincoln Aviator and over $3000.00 the police took off him during the arrest.
In a email sent to DWC, Ellen Canales, Department of Justice spokesperson spoke on behalf of the DEA regarding the ruling that may sometimes hamper narcotic investigations.
“The Department will work with its law enforcement agencies to ensure full compliance with this decision. We will make use of whatever technology is available to preserve evidence on cellphones while seeking a warrant, and we will assist our agents in determining when exigent circumstances or another applicable exception to the warrant requirement will permit them to search the phone immediately without a warrant.”
State and federal courts expect to review tons of motions for new trials from numerous lawyers representing defendants already convicted on crimes related to warrantless cellphone evidence, now that the U.S. Supreme Court has ruled the practice violates search and seizure law, in spite of the exclusionary “good faith” rule that allow police to make warrantless searches of property during arrests.
“There probably will be a good deal of litigation over whether this decision can be applied retroactively,” said San Franciso attorney Dennis Riordan, speaking in the Los Angeles Times.
Hanni Fakoury, a staff attorney with Electronic Frontier Foundation(EFF) told Drug War Chronicle in a interview, “When it comes to the Fourth Amendment, we want courts to ensure this important legal protection survives the rapid technological changes changes of the 21st century.”
Privacy advocates and libertarians are also hoping the Supreme Court ruling in Wurie and Riley case will have deep effects upon controversial cases making their way through the lower courts, whether it’s cellphone location data tracking or President Obama’s NSA Spy Surveillance Program.
The cellphone rulings in Brima Wurie and David Riley’s convictions are the latest landmark decisions to strike a balance between privacy protections and the evolving pace of technology, other favorable opinions are:
(1) Kyllo vs. U.S.(2001)
(2) U.S. vs. Antoine Jones(2012
In the groundbreaking ruling of U.S. vs Jones, the Supreme Court, in 2012, – overturned the life without parole drug conspiracy conviction of Antoine Jones, a case that involved federal agents and Maryland narcotic officers who placed a warrantless GPS tracking device on Jones’ vehicle for almost 30 days to monitor Jones’ movements and private activities 24 hours a day. After three hard-hitting controversial trials with one reversed conviction and two hung juries, Jones eventually copped a 15 year sentence last year to save his life from the Fed onslaught of lying informants and corrupt agents. In a tactical move, Jones appealed the 15 years he got as well. In a letter from prison to Drug War Chronicle, Jones commented on the cellphone decisions.
“The courts are constantly sending a message to police that they’re not willing to give them that much power and control. This is a good thing because the police need to be governed by the courts, and the courts should maintain the power to determine when a search warrant is necessary.”
“The police,” Jones further said, “are being either lazy, or they try to circumvent the law when courts rule in favor of protecting Constitutional rights.” Jones is writing a book about his battles with the almighty Feds, and a prominent producer is researching Jones’ case for a documentary.
U.S. VS. Brima Wurie
On September 7th 2007, Sergeant-Detective Paul Murphy and another officer of Boston Police(BPD) were surveiling the Dorchester District when they observed a black man identified as Fred Wade chatting on his new looking cellphone in the parking lot of a Lil Peach Convenience store. Wade had not committed a crime by talking on his private cell phone when police spotted a shiny Nissan Altma vehicle drive into the parking lot, making a sudden stop, and Wade got into the vehicle. Then the vehicle exited the parking lot and the driver drove down the street where he made a u-turn, and quickly, the vehicle returned to the parking lot where Fred Wade exited the vehicle in a cool, innocent manner.
Convinced a drug deal went down, Detective Murphy began communicating his suspicion to other officers headed to the scene. Police quickly aired a description of the car and the route it was traveling just when officers confronted Wade on the parking lot. Murphy asked Wade the reason why he came to the parking lot, and he asked who was the man who picked him up. While searching Mr. Wade, police discovered two separate bags of crack cocaine; total weight was 8 ounces. Wade got nervous, and immediately said the man who sold him the dope was, in fact, Brima Wurie.
“Cops never saw a drug deal go down nor had any credible reason to believe a drug deal was about to happen except for they saw two men who looked peculiar to the cops because they were black,” says Ian Gold, a defense attorney with the Federal Public Defender’s Office, who handled Wurie’s conviction appeal with the First Circuit.
When Brima Wurie pulled into another parking lot not far from the scene, an officer arrested Wurie for selling narcotics. Officers removed a set of keys, two cell phones and $1,275.00 from Wurie’s pocket. One of Wurie’s cellphones, a gray Verizon LG, started ringing; the screen on the phone displayed the words, “My House.” After running the number through an online white page directory, officers hurried to the address where they guarded the residence until officers got a warrant to search it. Officers recovered 215 grams of crack cocaine, a firearm, ammunition, drug paraphernalia, and $250 cash.
Wurie’s trial attorney immediately filed a Fourth Amendment violation with U.S. District Court of Massachusetts indicating when officers used information from Wurie’s cellphone to obtain drugs and the weapon from Wurie’s residence that this action alone violated the “search and seizure rule.”
Urging the judge to throw out the cellphone search, Wurie’s attorney argued the fact that when officers searched the phone, that the phone posed no immediate threat or danger to the officers under exigent circumstances as defined under the exclusionary rule.
Federal Judge Donald Sterling denied the motion and the case went to trial in February 2010. A jury found Wurie guilty on all counts. During sentencing, federal prosecutor implored the judge to hand down a stiff sentence to Wurie. Federal prosecutors introduced as evidence a pattern of alleged violent crimes predating to 1996, and the prosecutor pointed out that Wurie had three or more convictions for either a crime of violence or a serious drug offense that qualified Wurie as an Armed Career Criminal under federal law (18 U.S.C. 924 E).
On February 29th 2011, Judge Sterling lowered the boom by sending Brima Wurie to federal prison for 22 1/2 years. On May 7th 2013, attorney Ian Gold appealed to the First Circuit of Massachusetts on the basis of the warrantless search of Wurie’s cellphone and that the police committed illegal “search and seizure” by searching Wurie’s residence where the dope and weapon were found.
First Circuit Reversed the Illegal Search of Wurie’s Cellphone
“Such a search,” the opinion stated, “exceeded the boundaries of the Fourth Amendment’s (Search-Incident-to-Arrest Exception).” First Circuit further stated the government failed to prove the search was justified by exigent circumstances and that the trial court should have granted Wurie’s original motion to suppress the cellphone evidence. First Circuit left intact the conviction and sentence stemming from Fred Wade’s statement that Brima Wurie sold him the cocaine, that police took out of Wade’s pocket, although the drug charge against Fred Wade was mysteriously dismissed, and further, the government never called Wade to testify in Wurie’s jury trial.
Who Can Prove That Wade Wasn’t Trying to Sell Cocaine To Wurie?
Attorney Gold said the government then petitioned the U.S. Supreme Court for certiorari, which was granted January 17th 2014. “Mr. Wurie will face resentencing on the related counts.”
Supreme Court Ruling: The Reality Behind Whether Retroactive Status Apply to Fourth Amendment Cases
What the mainstream media haven’t thoroughly covered or fully explained to the public about the cellphone ruling is the reality that if the double reversals in Brima Wurie and David Riley’s cases are not granted retroactive status; many inmates will remain behind bars under questionable “search and seizure tactics.”
In an exclusive interview with Drug War Chronicle, Appellate Attorney Charles M. Sevilla, of San Diego California, explained the legalities of why the Supreme Court doesn’t grant retroactive status in some cases.
“The court seldom states whether its rulings are retroactive.” Sevilla said his assessment was based on prior case law where the court seldom applies retroactive status to Fourth Amendment cases that are already final.”
Sevilla went on to explain that “even if the reversals in Wurie and Riley’s cellphone convictions were applied retroactively,” that (cases not yet final on appeal), the defendants must face a “good faith” argument to request a new trial. A “good faith” argument can be made when a police officer, for example, acting on reliance of a warrant finds incriminating evidence during a “search and seizure” – and if that same warrant proves invalid – the “good faith doctrine is put to the test to preserve evidence of a crime.”
Another way is when a police officer happens to search a cellphone or personal property of a person prior to arresting that person, and if during the search some sort of evidence is found the “good faith” doctrine kicks in, and if challenged, the prosecutor will argue that the police officer’s action fell under the exclusionary rule to, again, preserve possible evidence, and to insure the arrested individual is not armed with a weapon.
Quoting Herring vs. United States (535 U.S. 335 statue), Sevilla further said, “(E)vidence should be suppressed only if it can be said that the law enforcement officer had knowledge a search was unconstitutional under the Fourth Amendment.” As an internal rule police officers usually deny knowing a conducted search was unconstitutional.
Sevilla further explained what may forbid retroactive status in the current cases involving warrantless cellphone searches is another prior U.S. Supreme Court ruling. Citing Davis vs. U.S., a case where the suspect, Willie Gene Davis, arrested for providing a false name to Illinois police officers, and when officers searched the man’s car they found an illegal weapon, a charge that enhanced Davis’s prison sentence. The appeals court refused to reversed the warrantless search of Davis’s car that led to the weapon by citing the fact the police did not violate reasonable “search and seizure” under the Fourth Amendment because the police only searched the immediate area.
“If the police, during prior cellphone searches, acted on case law allowing warrantless searches(as in Davis vs. U.S.), that an officer’s ‘good faith’ conduct will doom a suppression motion,” Sevilla explained to DWC.
Meanwhile Brima Wurie is scheduled to be resentenced on the drug charge where police allege that Fred Wade had said that Wurie sold drugs to him within a few feet of a school. The drugs and the weapon that police found in his home will be officially dismissed as result of the Supreme Court ruling.
“As a repeat offender, Mr. Wurie will still face 20 years in the Feds on the original drug case,” attorney Gold, said, by phone to DWC. So the reversal of Wurie’s conviction is largely symbolic without much benefit.
The irony of the Supreme Court ruling boils down to this: On the surface, Brima Wurie and David Riley’s cases appear so far apart from the NSA and Edward Snowden international data scandals. So how interesting it is that it took two convicted felons to force the Supreme Court to protect the privacy of millions of Americans who talk on cellphones equipped with reams of data of their everyday life.