“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
I used to think the Supreme Court worked with a selective Constitution, mainly to do with what I had heard about before: religion, speech, arms. Imagine my surprise when some of the most memorable and powerful cases in my Constitutional law class were, in fact, the cases on the less-oft-reported Fourth Amendment - the “search and seizure” cases.
From the Fourth Amendment we gain much of our understanding of the right to privacy, of the boundary between the state’s responsibility to promote “health, safety and general welfare” (a phrase and idea also known as the “police powers”) and the citizens’ privacy. The protection in the Fourth Amendment against unreasonable searches and seizures is a serious one, but probably one we take a bit for granted.
But this spring the Court is hearing cases about search and seizure, and this time, it’s about property common to us all: cell phones. According to NBC News, “The Supreme Court on Tuesday will take up a hot-button issue of privacy in the digital age: Can police, without a warrant, rummage through the cell phones of people they arrest?” They go on, “It's an important case, given that more than 90 percent of American adults now own a cell phone and 58 percent have a smart phone.”
Historically we have asked about and interpreted search and seizure in the context of physical possessions and property - now, as the digital age marches onward, the Court must determine how our digital property and information is protected by the Fourth Amendment.
The cases before the court involve current precedent which allows cell phones to be searched without a warrant if the person is in custody. So, in one of the cases, a man was driving with an expired license and was then arrested for carrying concealed weapons in his car. Upon being taken into custody, the man’s cell phone was searched revealing photos that led to charges of his participation in gang-related violence. The man, David Leon Riley, seeks to have the cell phone evidence thrown out for having been obtained without a warrant - violating the Fourth Amendment. (read more here)
A key component of the cases at stake is that smart phones contain an incredible amount of data and personal information more akin to a computer than, say, a diary. Courts have historically upheld searches of an arrestee’s personal effects (wallet, diary, etc.) but a cell phone, lawyers are arguing, constitutes something more substantial, given the data they contain.
As the NPR story on the upcoming cases noted, “"It's misleading to even think of them as phones," says George Washington University professor Orin Kerr, an expert on technology and the law. They are "general purpose computers" that have a bunch of apps, one of which is the telephone function.” So the question many are asking as these cases approach the highest court in the land - are cell phones different? What cases that have come before in the vast case body of the Court will shape the decision?
One of the most significant questions I am asking as I learn more about the upcoming cases is the question of a reasonable expectation of privacy. A significant part of the jurisprudence of the Fourth Amendment has included the development of an “expectation of privacy” that extends beyond concrete physical boundaries. In 1967, the Supreme Court ruled in Katz v. United States that a person was protected under the Fourth Amendment even when stepping into a public telephone booth, because the booth gave the person in question a reasonable expectation of privacy. The Court clarified in Katz that privacy was not contingent on the government entering the same physical space as the complainant, and noted that the Fourth Amendment is designed to protect persons, not specific places. Thus arose the “reasonable expectation of privacy” - the person entering the telephone booth is protected from unwarranted government surveillance of that telephone booth (in the Katz case, they attached a listening device to the outside of the booth) by the Fourth Amendment.
At the same time, warrantless searches have been permitted at the scene of an arrest in order to prevent the criminal from destroying evidence or to protect the officers.
But what about cases where the person in question has already been taken into custody, and it cannot be reasonably construed that the officers would be in immediate danger or that the person could destroy the evidence? Does the reasonable expectation of privacy change?
Furthermore, while one could say that the circumstances are fairly limited (this situation only arises in the context of an arrest) - as NPR reported, “civil libertarians on the left and right note that 12 million people are arrested each year, and most are never convicted of any crime.
Moreover, while some of these arrests arise from felony investigations, the vast majority are for alleged misdemeanors, such as driving under the influence or shoplifting cheap items.”
The ruling sets a precedent for what we believe is a reasonable expectation of privacy in an age where our technology carries unprecedented amounts of personal information. For my part, I am inclined to think that the expectation of privacy extends to a smartphone belonging to a person in custody, and that the burden of proof is on the officers to demonstrate probable cause in order to obtain a warrant to search the phone. Given that in these cases, the person in question is already under arrest and the phone is already in police custody, the likelihood of it presenting immediate danger or being destroyed as evidence are slim, meaning that an unwarranted search would indeed violate the Fourth Amendment.
Additionally, given the increasing amount of information found on a cell phone, it seems that a better analogy would be between a cell phone and a computer, rather than a cell phone and a wallet. Searching a computer without a warrant seems a more obvious violation of the right to privacy, given how much information and what a wide variety of information is stored on it; searching a wallet, which has been historically upheld, would not contain nearly as much personal data and therefore should not be compared with a cell phone.
But we miss a broader opportunity to think about privacy in terms of justice if we only argue about whether or not we have a reasonable expectation of privacy when it comes to our cell phones. Indeed, we ought to consider what Brad Littlejohn proposes in his Capital Commentary piece as a “duty to respect one another’s privacy.” We should think about not only the individual whose privacy may or may not be unconstitutionally violated by the search of a cell phone without a warrant but also the persons and/or institutions who are searching, seizing, or otherwise crossing the lines of privacy. Public justice requires that we take a look at not only our rights but also our responsibilities and duties; and these include the duties of the officer, the individual, and the community. What do probable cause, “in plain view” and privacy itself mean when we think about duty as well as rights?
While I am curious about the outcome of the case in the Supreme Court(room), I also want to know your thoughts - what does search and seizure mean in an age of cellphones? What is a reasonable expectation of privacy? What might some of these things mean for us in the increasingly digital age?
-Hilary Sherratt is a recent graduate from Gordon College, where she majored in Religion, Ethics and Politics. She is currently working as a grant writer at Gordon, and loves all kinds of writing. She hopes to eventually get her PhD in theology or history. She blogs about everyday life at http://thewildlove.wordpress.com and tweets at @hilarysherratt