In Riley, a decision worth celebrating—just in time for Independence Day

The past week has been a busy one for Supreme Court watchers, and there are going to be more explosive decisions coming before the Court completes its Term just in time for the Fourth of July. (Monday’s Hobby Lobby decision is sure to provide some fireworks.)

However, it’s worth pausing a moment to celebrate the Supreme Court’s consolidated ruling in the two  cases involving the constitutionality of the warrantless search of an arrestee’s cell phone, Riley v. California and United States v. Wurie. These cases involved a constitutional issue on which progressive and libertarian advocates agreed, something that’s proven to be a recipe for success before the Roberts Court. They also show how the Supreme Court can reach an answer to a seemingly modern question by listening closely to Founding-era history. For a ruling that’s sure to be remembered as an historic one, it’s poetically appropriate that the opinion was so directly shaped by lessons from two hundred and fifty years ago.

The question presented in Riley and Wurie was whether the Fourth Amendment permits the police to search the digital contents of an arrestee’s cell phone without a warrant. In an opinion written by Chief Justice John Roberts, the Court held that the contents of an arrestee’s cell phone are protected by the Fourth Amendment, and that, without a warrant, such searches are generally unconstitutional.

Much of the post-decision commentary has focused on the Chief Justice’s memorable lines about the ubiquity of technology in everyday life. And indeed, those who had feared that the Justices would not be familiar enough with the omnipresence of cell phones and what they are used for to appreciate the extraordinary privacy interests at stake were relieved to hear the Court recognize that cell phones are “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Justices’ tech-awareness allowed them to place the searches at issue in the appropriate Fourth Amendment context. At the close of his opinion, Chief Justice Roberts explained that the Court’s decision was directly informed by the clear parallels between these searches and the “general warrants” that colonial Americans had experienced and resisted under British rule.  As the Chief Justice stated,  “Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”

Indeed, the Court pointed to a specific episode of Founding-era history discussed in Constitutional Accountability Center’s historically-focused amicus brief. According to the Court, “Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance.”  The Court in fact cited the same ringing statement by future President John Adams that we highlighted in our brief:  “Otis’s speech was ‘the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.’”  

As we look ahead to the Fourth of July and the celebration of our country’s birth, it’s fitting that the Justices recognized that the events that helped mark the beginning of the fight for independence are as relevant today as they were then.