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In Riley v. California and United States v. Wurie, (David Leon Riley v. State of California, No. 13-132, United States v. Brima Wurie, No. 13-212, U.S. Sup.; 2014 U.S. LEXIS 4497) [lexis.com subscribers may access Supreme Court briefs and the opinion for this case], the US Supreme Court has issued a decision that will certainly impact arrest processing and investigative activities around the country. In an opinion that addressed appeals from one state and one federal court, the Court delivered an opinion describing clear limitations on cell phone searches conducted incident to arrest. Jay Shapiro discusses the decision in this Emerging Issue Analysis.
Keeping up with technology is an everyday fact of life. From considering what mobile computing device works best to how to download the latest video from the Internet, so many Americans face challenges presented by ever-changing technology. The courts are not immune to these concerns.
Five years ago, in People v. Weaver, 12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009), [enhanced version available to lexis.com subscribers], the New York Court of Appeals directed that a search warrant be obtained in order for law enforcement to use a GPS device placed on the inside of a target's motor vehicle. Explaining its concerns, the court described the pervasive manner of search that could be conducted through the electronically enhanced search, warning that law enforcement could use the GPS device to learn about "trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, the synagogue or church."
The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone's capacity allows even just one type of information to convey far more than previously possible. The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.
Jay Shapiro is a partner in the New York office of White and Williams LLP. Jay has more than 30 years experience concentrating his practice in litigation matters. He began his legal career as a prosecutor in the Bronx County District Attorney's Office (1980-1988) and later joined the King's County District Attorney's Office (1990-2002) where he became the Deputy District Attorney in charge of the Rackets Division before going into private practice. Mr. Shapiro has tried more than thirty-five cases in state and federal court. In private practice, he has handled litigation involving insurance fraud, white collar crime and Lanham Act (trademark) violations.
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