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.
The Obama Administration has
petitioned the Supreme Court to allow warrantless cellphone searches.
If the police arrest you, do they need a warrant to rifle through your cellphone? Courts have been split on the question. Last week the Obama administration asked the Supreme Court to resolve the issue and rule that the Fourth Amendment allows warrantless cellphone searches.
The case involves a man who was arrested because he appeared to be selling crack cocaine from his car. The police seized his cellphone which led them to his house which led to his conviction. He argued on appeal that his Fourth Amendment rights were violated.
Some courts have ruled that searching a cellphone is no different than searching a notebook, calendar, or anything they might find. The blogpost at WaPo argues that this case, from 2007, involves a simple flip phone and today's smartphones contain much, much more information so this is crossing a 'line'.
But as the storage capacity of cellphones rises, that position could become harder to defend. Our smart phones increasingly contain everything about our digital lives: our e-mails, text messages, photographs, browser histories and more. It would be troubling if the police had the power to get all that information with no warrant merely by arresting a suspect.
On the other hand, the Massachusetts case involves a primitive flip-phone, which could make this a bad test case. The specific phone involved in this 2007 incident likely didn’t have the wealth of information we store on more modern cellphones. It’s arguably more analogous to the address books and pagers the courts have already said the police can search.
But where is this 'line' they arbitrarily draw? Why should objects with a 'little' information be allowed to be seized and searched without a warrant while one with 'a lot' is off limits? The original intent of the amendment didn't imply anything about the quantity of information that could be seized. This is the perfect example of the slippery slope, the camel getting his nose into the tent, any cliched analogy you want to use. It's a gradual erosion of civil liberties that get chipped away one at a time, so doesn't get noticed, or gets a shrug. And if this is allowed to go through, as it most likely will given this SCOTUS, it's the next step down the slippery slope and it shifts the balance of power increasingly to the authorities.