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Fourth Amendment, Cell Phones and the Digital Age

imagesI remember buying my first car phone. It came with a portable pack the size of a video recorder that I wore on a strap. It was cumbersome and filled only one purpose–saving me from carrying a pocket full of quarters for the pay phones. Recently I attended a seminar sponsored by the local Bar Association on the use of iPads and Tablets in the practice of law. Attorney Ken Laska, a little longer in the tooth than me, did a marvelous job of educating us on the myriad uses these devices can provide. Ken no longer carries files to court or the traditional yellow legal pad. Relying on applications like iAnnotate and Evernote, his iPad is his instant access to all relevant data.

Laska and lawyers are no different than most professions. From waiters in your favorite restaurants to your physician, we have all become accustomed to the use of smartphones and tablets to store and access information. While many use these devices to provide constant commentary on their private lives through Instagram Twitter, Facebook, Snapchat, Vimeo and many other apps, many users protect the privacy of their stored personal information with screen locks and elaborate passwords.index

All of this evolution in digital life has created new privacy concerns that recently collided with the Fourth Amendment to the U. S. Constitution.  In 1789 James Madison introduced the Amendment to Congress, raising restrictions on government’s ability to conduct searches and seizures. Data was collected in books and letters. The idea that a device could hold a library containing thousands of pages of documents, photos, videos and all manner of personal information was as foreign as space travel. Yet it was this part of the Bill of Rights that Chief Justice Roberts relied upon in delivering the opinion of the Court in Riley v. California, ruling that the police may not search digital information on a cell phone of a lawfully arrested person without a search warrant. The fact that it was Roberts, the conservative, who authored this landmark decision demonstrates how strongly the Justices felt about protecting the privacy interests of smartphone users.

Traditionally the Court has allowed warrantless searches conducted following a lawful arrest. These searches have been limited to the area within an arrestee’s immediate control, for the protection of officers or to prevent the destruction of evidence. That permissive search area has been extended to a cigarette pack found on an arrestee’s person and the passenger compartment of the vehicle within reach of an unsecured arrestee. None of those three recognized exceptions to the Amendment’s warrant requirement were found to be justification for the warrantless inspection of the digital data on a seized phone.imagescar

The ruling noted that a phone cannot be considered potentially a weapon or a means to effectuate an escape. Officers can conduct a cursory inspection to determine that; but can no longer access the stored data. The Court rejected arguments that the phone’s content can be remotely wiped or encrypted. Police can either isolate  the phone in a protective bag or power it down and disconnect the battery. The Court noted that cellphones differ in both a “quantitative and qualitative sense from other objects that may be kept on an arrestee’s person” citing the numerous tasks that these mini-computers can perform. The fact that the data reviewed on a phone may be stored on a remote server also means that any such search may extend far beyond the phone itself.

While acknowledging that the ruling will have some limiting impact on law enforcement efforts to thwart crime, it does not mean that cellphones are exempt from searches. It merely means that a warrant is first required. To obtain that warrant officers will have to convince a neutral, detached magistrate that there are reasonable grounds to believe the phone contains evidence of a crime; the same process followed in applying for any other type of search warrant.indexcar

Rich Meehan