When questioned by the police, one has a constitutionally protected right to remain silent, but the contents of one's cell phone may speak for themselves.
The Supreme Court agreed to hear oral arguments on two cases last week, both of which center on the authority of police to search phones without a warrant — a practice that dates back to the 1970s.
A Court ruling in 1973 established law enforcement officers’ right to perform searches of any containers found on a person they had arrested. In April, the Court will hear oral arguments for one state case, Riley v. California, and one federal case, U.S. v. Wurie — each involving a different type of mobile phone. U.S. v. Wurie involves an outdated flip phone, but, in Riley v. California, the device in question is a smartphone, which is capable of holding much more personal data.
Austin Police Cpl. David Boyd said APD officers must at least have grounds for searching a person’s cell phone, but what constitutes fair grounds is determined by the circumstances of the arrest.
“Officers won’t search cell phones each and every time they make an arrest,” Boyd said. “It depends on the crime or the situation at the time. They determine whether or not to search on a case-by-case basis.”
The UTPD procedure for cell-phone searches requires officers to have a subpoena — a document requiring certain documents or testimony to be produced in court — before going forward with the inspection.
“We have to have probable cause as a result of a crime,” UTPD spokeswoman Cindy Posey said. “And we would never do a search without a subpoena.”
If a car accident occurs and the driver is suspected of texting while driving, officers would request the driver’s phone records, according to Posey.
“A hypothetical example would be if a pedestrian is hit and killed by a driver on campus,” Posey said. “At that time, we would subpoena phone records to find out whether or not the driver was texting or on a call.”
With the Court set to determine whether police officers can have warrantless access to the potentially large amount of personal data carried on smartphones, mechanical engineering senior Evan Bartilson said he would be outraged if the information on his cell phone were examined without a warrant.
“I can hardly believe this practice is up for debate,” Bartilson said. “I see it as an immediate violation of our Fourth Amendment rights.”
Bartilson said he thinks smartphones should not be searched without authorization because they hold digital communications, locations and photographs.
“If anything should require a warrant [to search], it should be your cell phone,” Bartilson said. “Under no circumstances should something as incriminating and personal as a cell phone be searched [without a warrant].”
Undeclared sophomore Alex Bureau said she thinks unauthorized cell phone searches are unacceptable unless there is a warrant out for one’s arrest.
“Honestly, if the police have a warrant out for your arrest, I believe they have the right to search your phone,” Bureau said. “But, if you are randomly arrested, like maybe for drunk driving, the police shouldn’t be able to search your phone or car until they have permission for it.”