Criminal Practice

The U.S. Supreme Court Takes on Cellphones and Privacy

, The Legal Intelligencer

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Business people on flying smartphones.
Business people on flying smartphones.

The Fourth Amendment has protected individuals from unlawful governmental searches and seizures for more than two centuries. Initially, the thrust of the Fourth Amendment focused on the homes of early Americans—those places where individuals wanted to remain "secure in their persons, houses, papers and effects."

Today, the Fourth Amendment is being tested in ways that would have been unimaginable when the U.S. Constitution was written.

Last fall, the Washington Post reported that U.S. Supreme Court Chief Justice John G. Roberts Jr. told a room full of college students that the biggest constitutional challenge facing the court was "the fundamental principle underlying what constitutional protection is and apply[ing] it to new issues and new technology."

The Supreme Court will take on another aspect of that challenge when it considers whether police need a warrant to search the contents of a cellphone seized when making an arrest.

This April, the court will hear oral arguments in two cases, Riley v. California, No. 13-132, and United States v. Wurie, No. 13-212. Each case deals with similar, but not identical, technologies. The Wurie case is out of Massachusetts and deals with an old-style flip phone, while the Riley case out of California deals with a smartphone.

Forty years ago, the Supreme Court established the search-incident-to-arrest doctrine in United States v. Robinson, 414 U.S. 218 (1973). Such a search permits an arresting officer to seize and search any item found on an arrestee.

Under the court's ruling, the police could conduct a "full search of the person [of an arrestee], his effects and the area within his immediate reach without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested."

The defendants in the current cases are suggesting that a cellphone is unlike any other evidence that can be found on an individual incident to an arrest.

Judge Norman H. Stahl of the U.S. Court of Appeals for the First Circuit wrote in the lower court opinion in Wurie, "That [cellphone] information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email and voicemail), contacts, calendar appointments, Web search and browsing history, purchases and financial and medical records." He added, "It is the kind of information one would previously have stored in one's home."

Wurie and Riley reflect the deep split between federal appeals courts and state supreme courts regarding the application of constitutional protections to modern technology.

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