On April 29, the U.S. Supreme Court will hear arguments in two criminal cases that together address one issue: whether the Fourth Amendment permits the police to conduct a warrantless search of the contents of a person’s cell phone upon his or her arrest.
That may be of interest to the 91% of Americans who own a cell phone, the 81% who use it to send and receive messages, or the 60% who use it to access the Internet. It’s already captured the rapt attention of the national and political press.
The briefs for the two cases, Riley v. California and United States v. Wurie, can be found here and here, courtesy of the American Bar Association. In addition, a number of amicus briefs have been filed by the American Civil Liberties Union, the Cato Institute, the Electronic Frontier Foundation, and the National Association of Criminal Defense Lawyers, among others.
The Fourth Amendment to the Constitution protects the right of the people “to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” U.S. Const. amend. IV.
The reasonableness of a warrantless search begins with the basic rule that searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few, well-delineated exceptions. Arizona v. Gant, 556 U.S. 332, 338 (2009).
Among those exceptions is a search incident to arrest, which means that when the police arrest you for something, anything, they’re allowed to search you and your immediate vicinity without a warrant.
But the exception exists to counter two specific risks: one is the risk to officer safety, and the other is the risk of evidence destruction. Gant, 556 U.S. at 338-39. Beyond that, there is no basis for it.
So what about cell phones? They hold exponentially more information than any physical item anyone can carry on his or her person, and much of that information is personal or sensitive or implicates First Amendment concerns of free expression, private communication, and free association.
Should the police be allowed to conduct such broad, exploratory searches of your papers and effects just because they arrested you?