Civil and Human Rights

The Supreme Court Cases Everyone With a Cell Phone Should Be Watching

Do you have a cell phone?  Does it contain private information you’d like to keep private—texts, emails, call logs, pictures, calendars, and the like?  If so, you should be paying attention later this month when the Supreme Court hears oral argument in Riley v. California and United States v. Wurie, two cases that will decide whether you can count on the seemingly private information on your phone staying private.

The legal question in these cases is simple: whether the warrantless search of an arrestee’s cell phone (and note that you can be arrested for offenses as minor as jaywalking or littering) violates the Fourth Amendment. The answer to the question is simple, too:  it does. 

The Fourth Amendment protects people’s “papers” and “effects” from “unreasonable searches,” and the contents of our phones are the modern version of “papers and effects.”  The Fourth Amendment also provides that warrants authorizing searches must, among other things, “particularly describ[e] the place to be searched, and the persons or things to be seized, ” and it was adopted to prevent the government from searching people’s papers and effects in the absence of individualized, justified suspicion that a specific search would produce evidence of wrongdoing.  Stated simply, the Framers wanted to strip the government of the arbitrary power to rifle through a person’s belongings in the hope of finding something incriminating.  Thus, the searches at issue in these cases were exactly the sort of generalized searches that the Framers abhorred—and adopted the Fourth Amendment to prevent.

These searches are not only unconstitutional, they’re also completely unnecessary.  If the police have probable cause to believe the phone contains evidence of a crime, they can always get a warrant after they seize it and then search the phone for evidence.  The Supreme Court has held that police officers may sometimes engage in warrantless searches after arrest, but only to prevent arrestees from hurting the police or destroying evidence.  Once the police have seized an arrestee’s cell phone, there’s obviously no danger of these things.  Indeed, if there were specific reason to think there was some danger or that evidence was about to be destroyed, the police could search under an already-existing exception to the warrant requirement.

Even though these cases should be simple, the members of the Supreme Court have sometimes found grappling with new (and even old) technologies to be less than simple.  There are four reasons why everyone should be watching these cases to see what the Supreme Court does.

1)      It Could Happen To You:  Although these cases involve searches after an arrest, the arrest doesn’t have to be for a serious offense.  People can be—and often are—arrested for the most minor of infractions, such as jaywalking, littering, or riding a bicycle the wrong way on a residential street.  People can also be wrongly convicted for offenses they didn’t commit.  As Petitioner Riley’s brief notes, a majority of people who are arrested are never convicted of any crime.  So the next time you decide to skip the crosswalk or drop a piece of trash on the street, you could be opening yourself up to a search of anything and everything on your cell phone, no matter how private. 

2)      It Won’t Just Be Cell Phones:  These cases both involve cell phones (one a flip phone and one a smart phone), but if the police can search cell phones without a warrant following a lawful arrest, there’s no reason why they won’t be able to search other digital devices, as well.  Your tablet, your laptop, your e-reader, your camera—any digital device you have on you when you’re caught jaywalking will be fair game.    

3)      Be Careful What You Say, Write, Google, Etc.:  If the police can search your phone or other digital device without a warrant, they’ll be able to read all of your emails, listen to all of your voicemails, review all of your documents, etc.  As a result, you may feel like you have to be more careful about what you say, write, or Google.  This means that, in addition to trampling on Fourth Amendment rights, warrantless searches of digital devices will also discourage (“chill” in legal terms) your exercise of your rights under the First Amendment.

4)      Who Knows What the Court Will Do Next?: This isn’t going to be the last time the Court has to grapple with the Fourth Amendment and new technologies.  If the Court allows the searches in these cases, there’s reason to worry about what it might do in other Fourth Amendment cases involving new technologies that are coming down the pike

In short, there are many reasons why everyone who owns a cell phone should be paying attention to what the Court does in these cases.  You don’t have to be a criminal to want a little privacy for your most personal possessions.  The Framers certainly did.

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