On Wednesday, the Supreme Court handed down a unanimous ruling in which they declared it was unconstitutional to search an individual’s cell phone without a warrant. The court, in a 9-0 ruling said, “Police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”
The court was looking at two separate cases, one in California and one in Massachusetts. The two cases being weighed were Riley v. California, 13-132 and U.S. v. Wurie, 13-212. While the circumstances differed in the two cases, mainly the kinds of phones used (one a standard flip phone and the other a smart phone) and the scope of the cases, the court determined that in both instances that the search of the phones was unconstitutional.
The court said on a 9-0 vote in an opinion written by Chief Justice John Roberts that the right of police to search an arrested suspect at the scene without a warrant does not extend in most circumstances to data held on a cellphone. There are some emergency situations in which a warrantless search would be permitted, the court noted.
The ruling is a blow to law enforcement agencies that would prefer more latitude to search without having to obtain a warrant.
“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime,” Roberts wrote.
The right to privacy, he said, “comes at a cost.”
The fact that there is a caveat of “emergency situations” where a warrantless search would be permitted seems to fly in the face of the Fourth Amendment, which makes no such exceptions.
However, police are still allowed to look at and examine cell phones to make sure they are not weapons. According to the ruling, “Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.”
“Modern cellphones are not just another technological convenience,” wrote Chief Justice John Roberts. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”
“Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on arrestee’s person,” Roberts wrote. “Many of these devices are in fact minicomputers” that “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”
“It is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives,” he added.
He also wrote the just because an individual can carry this magnitude of information on their person “does not make the information any less worthy of the protection for which the Founders fought.”
The California state courts ruled that the search of electronics on a person was the same as anything found on the person under recognized exceptions to a warrant requirement. However, that begs the question of the Fourth Amendment, doesn’t it? If citizens are to be secure in their persons and papers, where does anyone come to the conclusion that the Fourth Amendment implies “recognized exceptions”?
Well the court didn’t cite the Constitution, but they did give an answer.
“To the extent that law enforcement still has specific concerns about the potential loss of evidence in a particular case, there remain more targeted ways to address those concerns,” Roberts wrote. “If “the police are truly confronted with a ‘now or never’ situation,”—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately.”
“Or, if officers happen to seize a phone in an unlocked state, they may be able to disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data,” Roberts continued. “Such a preventive measure could be analyzed under the principles set forth in our decision in McArthur, 531 U. S. 326, which approved officers’ reasonable steps to secure a scene to preserve evidence while they awaited a warrant.”
In other words, the court became a law unto itself in determining when the Fourth Amendment didn’t apply, in its ruling in the case of Illinois v. McArthur, 531 U. S. 326, 331–333 (2001). Doesn’t this open up the door to interpretation of “exigent circumstances”? After all, this is the same court that has given rise to the very police state that is violating the Fourth Amendment now.
“The department will work with its law-enforcement agencies to ensure full compliance with this decision,” U.S. Justice Department spokeswoman Ellen Canale said. “Our commitment to vigorously enforcing the criminal laws and protecting the public while respecting the privacy interests protected by the Fourth Amendment is unwavering.”
While all the justices sided with Roberts, Justice Samuel Alito wrote to urge congress to determine privacy rights, instead of leaving that up to the courts.
One would think this should have an impact upon unconstitutional “Constitution Free Zones,” where electronic devices are being searched and seized by federal agents without warrants every day. My guess is that Ms. Canale is quite aware of the violation of the law that this administration has been conducting against American citizens, but sadly her rhetoric doesn’t match the Justice Department’s actions.
My favorite Judge, Andrew Napolitano, explained the issue as the Supreme Court was determining to look at the case. Take a listen: