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Supreme Court Rules Police Need Warrants For Most Cellphone Searches


It's MORNING EDITION from NPR News. Good morning, I'm Steve Inskeep in Washington.


And I'm David Greene, broadcasting this week from member station WLRN in Miami. The Supreme Court yesterday ruled that police need to get a warrant before searching someone's smart phone. Civil libertarians praised the ruling - police, not so happy. They're worried about the extra bureaucracy this will create for investigators. NPR's Martin Kaste takes a closer look at the practical effective this ruling will have on law enforcement.

MARTIN KASTE, BYLINE: The cops were not happy with this ruling. Yost Zakhary is the chief of police in Woodway, Texas. And he's also the president of the International Association of Chiefs of Police.

YOST ZAKHARY: It will slow down some of law enforcement's work. And I think it could adversely affect our ability to investigate and combat some crime.

KASTE: But it may not really change that much in practice. A lot of police departments were already inquiring investigator to get warrants to search phones, largely in anticipation of a ruling just like this one. Still, some departments have found it useful in the past to dispense with warrants in certain situations.

ZAKHARY: A lot of them also use them on the side of the road. And when we stop a person, whether it's gang related or some sort of crime, and we look at a phone - especially if you stop somebody coming out of a high drug traffic area.

KASTE: But to some people that sounds a lot like a fishing expedition. Stanford law professor Jeffrey Fisher is one of the attorneys that took this issue to the Supreme Court. He represented the defendant from San Diego, whose gang affiliation was discovered when the police searched his phone.

JEFFREY FISHER: The detective here, at one point, was asked. And he said forthrightly - and this is in our record and we quote in our brief - he says he had, quote, "no idea what he might find." But he was just, quote, "looking for evidence of crimes."

KASTE: And that's one of the purposes of a warrant. It forces police to say what they think they're going to find, before they start searching. It also slows things down, having to get the okay from a judge, but not by that much.

LAURIE LEVENSON: It's not that hard to get a warrant. You just put in the paperwork and most judges will say yes.

KASTE: Laurie Levenson teaches criminal law at Loyola Law School in Los Angeles. She says the police and the courts will quickly establish standard forms and language for getting a warrant for a cell phone - just as they set up systems for getting quicker warrants to test the blood of drunk drivers. Levenson says it's also important to remember that cops will usually try to get a suspect's permission to search the phone first. Most police searches in America happen without a warrant because a person just says yes.

LEVENSON: You know, and it's very intimidating. And the officers are not required to tell people, you have the right to have us go get a warrant. They can just simply ask, hi, you've just been arrested. Can we look in your phone? And if you say yes to that, they'll never have to go get the warrant.

KASTE: And there's a lot here that's still unsettled. Yesterday, the Supreme Court gave the police permission to skip the warrant in emergencies. It'll be interesting to see which situations end up meeting that emergency criterion. There's also the question of what constitutes plain view on a smart phone. When police search a house, they're allowed to collect unexpected evidence, if they see that evidence in, quote, "plain view." But what happens when they get a warrant to search a smart phone? What's plain view? Can they open every calendar item, every photo?

LEVENSON: When they start to do that they're going to see all your other apps. So a big issue left open by this case is how much of the courts are going to say, gee, you can only search for the things that are in the warrant. And no matter what else you see, that's all you can use.

KASTE: And when the police copy the contents of a phone, can they save that - share it with other agencies? Levenson says she expects future challenges on many of these details. As the courts just begin to grapple with the implications of a pocket-sized device on which we store pretty much everything there is to know about us. Martin Kaste, NPR News. Transcript provided by NPR, Copyright NPR.

Martin Kaste is a correspondent on NPR's National Desk. He covers law enforcement and privacy. He has been focused on police and use of force since before the 2014 protests in Ferguson, and that coverage led to the creation of NPR's Criminal Justice Collaborative.