Thursday, July 3, 2014

Comparative Constitutionality of Warrantless Cell Phone Searches

    Last week, in Riley v. California, No. 13-132 and 13-212, 2014 BL 175779, 2014 WL 2864483, 2014 U.S. LEXIS 4497 (U.S. June 25, 2014), the U.S. Supreme Court held that the police may not search a cell phone incident to arrest without a warrant.  Two years ago, on April 24, 2012, the Brazilian Supreme Court reached the opposite conclusion when it held that Brazilian police do not need a warrant to access the cellphone agenda of an arrested suspect (H.C. 91.867). The case involved a defendant described as a “well-known contract killer,” who was accused of murdering a victim in broad day light in the state of Pará, Brazil in 2004.  Upon his arrest, the police checked the agendas of the defendant’s two cellphones, which gave them evidence against the people who supposedly contracted the killing.  The supposed contractors argued the unconstitutionality of that evidence as violating their right to not have their communications intercepted without warrant.

    The Brazilian court upheld the constitutionality of the search, reasoning that the Brazilian Constitution (C.F.) protects telephone communications (art. 5º, XII) and the contents of a cell phone differently. The Brazilian Constitution states that telephone communications are inviolable, except when authorized by a judge in case of a criminal investigation (art. 5º, XII). Therefore, a warrant would be needed in case of wiretapping. However, the search of the cell phone was not the same as wiretapping. The police simply accessed the phone agenda to discover with whom the defendant had talked before the killing.

    The court analogized to the situation in which police officers found a piece of paper with a phone number written on it in the defendant’s shirt pocket.  In addition, the court considered the seriousness of the crime and the public’s interest in solving it to outweigh the right to privacy of the defendants.   Justice Mendes also pointed to the theory of inevitable discovery, built by the United States Supreme Court in Nix v. Williams (1984), which would have been applied to the case, since the seizure of a cellphone is usually followed by access of all of the phone registers, not just the last calls.

    The comparison between the two decisions is interesting.  First, obviously, the US and Brazilian constitutions are different:  the US constitution prohibits unreasonable searches and seizures, but the Brazilian Constitution prohibits intercepting communications.  Accordingly, the United States and Brazilian courts seem to analyze the scope of privacy protection differently.   In addition, this kind of Brazilian Supreme Court decision is not binding on other courts,  allowing the Court to focus on the specific facts of the case rather than establishing a general rule.

    Factually, too, the cases are different.  The Brazilian case involved a search of a cell phone in 2004, at a time when cell phones contained much less personal data than they did at the time of the Riley search.  And, to the extent that both courts balance the public’s interest in solving crime against the privacy rights of the defendant, the Brazilian case involved a heinous murder for hire while the Riley case involved narcotics.  The Brazilian court focused specifically on the seriousness of the crime.

    In either country, predictions are difficult.  As technology evolves, so too will the issues surrounding seizure of a variety of items, including laptops and the like.  And as we continue to publish personal information extensively in places like Facebook, Twitter and Instagram, our reasonable expectations of privacy may change.  It will be interesting to see how the jurisprudence follows these developments.

**This post was co-authored by Rafael Wolff, a Federal Judge in Brazil and an SJD Candidate at Pace University School of Law.

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