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The “Papers and Effects” on Your Cell Phone May Not Be as Private as You Think

August 30, 2013

The Fourth Amendment protects all of us from the unreasonable, warrantless searches of our “houses, papers, and effects.”  Today, in the age of the smart phone, almost all of us carry around some of our most private “papers and effects” everywhere we go.  At any given time, we carry in our pockets our family photos, our calendars, and our private communications, both professional and personal.  It’s difficult to imagine modern life without the smart phone and all of the conveniences it offers, and we reasonably assume that the private information on our phones will stay private as long as we want it to.  But recent court cases may put that assumption in jeopardy. 

The California Supreme Court, for example, has held that if a person is arrested, regardless of the seriousness of his or her alleged offense, the police may conduct a warrantless search of the digital contents of that person’s cell phone.  In other words, following arrest, the police may read our emails, look at our photos, see the people we called, explore our contacts.  Other courts have reached similar conclusions.  It’s an incredible invasion of privacy—and one the Framers of our Constitution would have abhorred. 

This week, CAC filed an amicus curiae brief in the United States Supreme Court in Riley v. California, urging the High Court to review this case, which involves the search of petitioner David Riley’s cell phone in the absence of a warrant and exigent circumstances, first at the scene of his arrest and then hours later at the police station.  The California Court of Appeal upheld this search.  In our brief, we urge the Supreme Court to grant certiorari—i.e., agree to hear the case—and to hold that the warrantless search violated the text and history of the Fourth Amendment.

The Fourth Amendment broadly protects against “unreasonable searches and seizures,” and also provides that “no Warrants shall issue” unless they “particularly describ[e] the place to be searched, and the persons or things to be seized.”  When the Framers adopted this Amendment, they were responding, in large part, to the British use of “general warrants” and “writs of assistance.”  These warrants and writs lacked any specificity about the people or items to be searched and were not predicated on any individualized suspicion; essentially unlimited in scope, they allowed the officers executing them virtually unfettered discretion to engage in broad searches of a person’s home and the personal papers and effects in that home.

The use of these warrants was the subject of great opposition on the eve of the American Revolution.  In a high profile case in 1761, a group of Boston merchants challenged the use of general warrants.  Their attorney, James Otis, decried them as “the worst instrument of arbitrary power” and warned that they “place[d] the liberty of every man in the hands of every petty officer.”  Indeed, their use was one of the grievances that prompted the call for independence from British rule.  John Adams later remarked that Otis’s attack on the use of general warrants “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.”  And as the Nation’s new Constitution was being debated, there were calls for an explicit prohibition on the use of such warrants.  The uniquely detailed text of the Fourth Amendment was the result.  It not only enshrined in our Nation’s charter a specific prohibition against general warrants, but it also reflected the Framers’ more general concern that government officers not be able to search a person’s home, papers, and effects in the absence of some 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.

The practice permitted by the California courts (and others) violates this fundamental Fourth Amendment precept.  Although the police may sometimes conduct warrantless searches after a lawful arrest, the traditional justifications for such searches were not present in Riley’s case—Riley’s cell phone had been taken away from him upon his arrest, thus eliminating any concern about destruction of evidence, and the text messages, emails, photos, and other digital contents of the phone could not have posed any threat, let alone an imminent one, to the arresting officers’ safety.  To the contrary, the police acknowledged that they had dug through “a lot of stuff” on the phone specifically “looking for evidence.”  This is precisely the type of search for which the Constitution demands a warrant.

By permitting law enforcement officers to look through the contents of an arrestee’s cell phone without a warrant and in the absence of recognized exigent circumstances, the decision by the state court in this case invites the police  to engage in the same sort of generalized searches that the Framers despised—and adopted the Fourth Amendment to prevent.  The Supreme Court should grant the petition in Riley v. California and hold that such searches are prohibited by the Fourth Amendment.  

 

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