Can a police officer search your cell phone without first obtaining a search warrant? Is that a constitutional practice? Or is law enforcement violating your Fourth Amendment right to free from unreasonable searches and seizures, when it snoops on the contents of your phone without first obtaining judicial permission? Two cases before the Supreme Court will soon give the justices a chance to answer these questions.
The Supreme Court will hear oral arguments in April on whether or not police may search the cell phones of individuals during or after arrest. Justices will hear appeals in two cases, one from Massachusetts and one from California, in which criminal defendants were convicted and sentenced at least in part on the strength of evidence obtained by warrantless searches of their cell phones. There is a slight difference between the two cases. In California, the defendant possessed a smart phone, so the police were able to discover a multitude of data - including incriminating videos - which helped lead to a conviction. In Massachusetts, the defendant's phone was not a smart phone, so the police merely accessed the phone log.
There is precedent sanctioning the police officers to inventory and search items in a person's possession at the time of arrest. Much of that precedent deals with issues more common to the 20 th century - i.e., can the police search an arrested person's diary, address books and/or calendars. With the emergence and popularity of smart phones, however, a person's cell phone may reveal intimate and comprehensive details of a person's life. Photos, videos, e-mails, text messages, bank history and location data are all at the fingertips of the police, should they obtain possession of a person's phone and have the authority to search it. The potential problems with the old standards have become more apparent.
The upcoming decision would finally provide some clarity as to how these issues should be handled. Over 80% of the population now uses cell phone technology. It is high time for the courts to outline basic and proper protocol regarding privacy issues presented by this technology. While the Supreme Court has not yet provided such guidance, state courts have been dealing with these issues for quite some time. Some examples of the disparity of treatment by the states are as follows:
- In 2008, the Southern District Court of Kansas ruled that citizens lack a "reasonable expectation of privacy" on address book and call records information stored in their cellular phones.
- In 2012, a Rhode Island state court ruled that a police officer who searched the texts of a suspect who was not under arrest violated the Fourth Amendment.
- Also in 2012, the Court of Appeals of Washington ruled that it was legal for an officer to impersonate a suspect via text while the suspect was in custody.
The Supreme Court will soon decide where the fourth amendment line is drawn around cell phone privacy and what that will mean for warrantless police searches. Stay tuned here for the latest developments.