So you get pulled over, you resist arrest, a fight breaks out between you and the cop, you’re restrained and then your phone is taken. This isn’t a typical scenario that happens to law abiding citizens. What does happen to law abiding citizens is that sometimes we get pulled over for driving a little faster than allowed or for forgetting to use our blinker. Once you’ve been pulled over, do the police have the right to seize your digital content? Digital content such as all the information on your iPhone. This is a big question that needs a definitive answer.
Is the following paragraph familiar to you?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It should be familiar. It’s The Fourth Amendment.
So who has the upper hand? The small citizen that shields himself with The Fourth Amendment ? Or the police that desperately want to access our phones? This exact question came up in Riley v California. The 2014 United States Supreme Court case discussed this exact issue. In Riley v California the verdict was unanimous, stating that warrantless searches and seizures of the digital contents of a cell phone during an arrest are unconstitutional. As we all know, the verdict of the United States Supreme Court is a precedent for all lower courts.
The background to this case came from the arrest of petitioner David Leon Riley on August 22, 2009. A traffic cop found Riley was carrying loaded firearms in his car. The police officers took Riley’s phone and searched through his personal messages, contacts and photos. Thanks to the information they found on his phone, the police were able to charge him with an unrelated shooting that had taken place several weeks prior to his arrest.
That all sounds mighty convenient. But is it constitutional? Do we want to have the police searching through our private information without any warrant?
In the words of Chief Justice Jon Roberts
Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon–say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.
Roberts goes on to explain that
Cell phone data would be vulnerable to remote wiping from the time an individual anticipates arrest to the time any eventual search of the phone is completed … likewise, an officer who seizes a phone in an unlocked state might not be able to begin his search in the short time remaining before the phone locks and data becomes encrypted.
So basically if you have a strong passcode on your phone your protected anyway. Now though, you have the backing of the United States Supreme Court and the United States Constitution.
Unfortunately the story doesn’t end here for cell phone owners and drivers, as a recent Virginia Beach Circuit Court judge has ruled in the case of David Baust that a defendant can be forced to give up his fingerprint, but not his pass code, in order to allow law enforcement to search his or her mobile device.
Doesn’t this contradict the Supreme Court ruling in Riley v California? Not quite, you see Riley v California examined the question through the eyes of the Fourth Amendment. The case of David Baust considers this a Fifth Amendment issue. The Fifth Amendment states that:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
So put simply, The Fifth Amendment protects you from being forced to offer incriminating information about yourself. Thus meaning that you are not obligated to tell the officer your phone’s password. Brilliant, this also stays in line with the ruling of the Supreme Court in Riley v California. Unfortunately, you can be forced to hand over physical evidence such as DNA. In the David Baust case, the court ruled that a fingerprint is considered a physical object thus allowing the officers to make you give it up to them.
So what can we learn from this ruling? Two things, the first, that the Virginia Beach court has found a loophole in the ruling of Riley v California. They sneakily found a way to keep in line with the Supreme Court verdict while simultaneously allowing a way around it. Second? That the ruling is actually quite pointless, as anyone with an I.Q in the double digits can easily render the David Baust ruling useless.
Harvey Specter of Suits once said:
What are your choices when someone puts a gun to your head? You take the gun, or you pull out a bigger one. Or, you call their bluff. Or, you do any one of a hundred and forty six other things.
There is always a way around everything. It’s only a question of how determined you are. Here are a few theoretical ideas BizzVenue came up with (BizzVenue by no means recommends doing any or all of the stated below. Any action taken is at your own risk):
- When the officer approaches, turn off your iPhone. Touch id won’t work after a reboot. This first unlock can only be done with a passcode.
- Purposely use the wrong (unregistered) finger 10 times in a row. This will wipe the iPhone clean.
- This is an idea for Apple… in a future iOS update allow users to set up a “distress finger”. In the same way that you set up a specific finger to unlock your device, why not set up a different finger that will wipe the device once scanned successfully?
What’s your opinion though? Do you agree with the unanimous verdict given by the United States Supreme Court in Riley V. California? Do you agree with the verdict given in the Virginia Beach court? Do you believe that since you have nothing to hide this isn’t a concern for you? The police will definitely be getting the finger, whether it’s used to unlock the device or not is another question. BizzVenue would love to know what you all think about this delicate situation. Leave a comment!
NYPD photo courtesy of Dave Hosford @Flickr
