Searching a Cell Phone

Linda Greenhouse, The New York Times Supreme Court and legal affairs reporter, has a great column on yesterday’s 9-0 Supreme Court decision requiring police to obtain a warrant in normal circumstances if they wish to search a cell phone.

While the Fourth Amendment holds that searches and seizures are not allowed except where the police have a warrant issued upon probable cause and supported by an oath or affirmation (affidavit).

That plain language has been eroded over the past 60 years, especially in light of the war on drugs, as the government has found it too cumbersome to get a warrant before conducting searches.

In the 1960s, the Supreme Court created exceptions to the general prohibition against warrantless searches and seizures, including the idea of a Terry stop and frisk which could be performed without a warrant and without probable cause.

And in Chimel and a series of subsequent cases, Supreme Court has said that police may even search areas near where the suspect was arrested for contraband or weapons. Originally those searches were justified by officer safety or about the threat that the suspect might suddenly attempt to destroy evidence.

But, until Arizona v. Gant, the Supreme Court had begun to discard that justification, and simply make the exception so general that the police could simply search the area near the suspect for nearly any reason.

As technology has progressed, and as people have begun to carry around with them cell phones that contain as much information as a personal computer, the question for the courts has been whether the justices would allow cops to search cell phones without a warrant, thereby opening the suspect’s entire life for inspection without any judicial oversight.

Prosecutors and the solicitor general who advocate this type of nearly limitless warrantless search must not have iPhones.

But, as Linda Greenhouse points out, the justices obviously do, and were buying none of the government’s argument that searching an iPhone is just like searching the physical effects – photographs stuffed in a wallet, an old receipt found in a pocket – is just like the government having access to the vast amounts of data available on a cell phone.

Probably because the justices on the Supreme Court have cell phones too, and the thought of allowing the government free access to their entire digital lives is frightening to them, too.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.