Fourth Amendment

Today at SCOTUS: Do Cops Need a Warrant to Search Your Cellphone When You're Under Arrest?

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The U.S. Supreme Court will hear arguments today in a pair of major Fourth Amendment cases testing the reach of police powers. At issue in both Riley v. California and United States v. Wurie is whether law enforcement must obtain a warrant before conducting a cellphone search incident to arrest. As I explained in a recent column, the Court's answer to that question is likely to have a profound impact on the rights of all Americans in their dealings with the police:

According to a long line of Supreme Court precedent, the police do not need a warrant to search the individuals they arrest, and that includes both the persons and possessions of the arrestees, including any bags, containers, or other items they were carrying. Furthermore, the police may conduct a warrantless search of the immediate vicinity around the arrest site. This exception is designed to help law enforcement prevent the destruction of evidence and to discover any evidence or weapons that might have been concealed.

The rise of the cellphone complicates this picture. Unlike diaries, notebooks, or briefcases, all of which the police are allowed to search incident to arrest, cellphones contain previously unimaginable amounts of personal information, including not only words and images but also GPS location data. In other words, should getting arrested for a minor offense like jaywalking be sufficient to allow the police virtually unlimited access to your private affairs in search of additional wrongdoing?

These cases go to the very heart of the Fourth Amendment, which not only protects "the right of the people" to be free from "unreasonable searches and seizures;" it requires the government to show "probable cause" and describe "the place to be searched, and the person or things to be seized" before a warrant will be issued. That language was added to the Constitution in order to repudiate the colonial era practice of issuing "general warrants," those notorious blank checks cited by snooping British officials. It takes no leap of imagination to see a warrantless cellphone search—which gives today's police snoops a window into every nook and cranny of one's private life—as the modern day equivalent of the justly banished "general warrant."

We'll find out soon which way the Supreme Court sees it.

NEXT: Jacob Sullum: Hung Up on 'Stand Your Ground'

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  1. The way too many cops are behaving these days, they should have yo get specific warrents to breathe.

  2. Not only should they be barred from conducting these kinds of searches, their weapons need to be taken away from them, especially the most dangerous one – “Qualified Immunity”.

    1. Holding someone personally responsible for their actions ? That’s for civilians. The warrior caste is held to a higher standard, remember.

      1. Proove it.

        A higher standard involves greater personal responsibility.

        1. Irony…how does it work

          1. Poorly.

            Especially in plaintext.

            1. It was pretty damn clear, in this case.

          2. Irony or sarcasm?

      2. Even in sarcasm I loath referring to cops as anything approaching warriors. Go serve in a combat arms branch of the services then look in the mirror.

        The warriorization of police is going to end badly, for the police when they meet those who have actually fought.

  3. Of course they can take your phone and search it, with no warrant, with a warrant, in a box, with a fox, up in trees, with the bees.

    Because TRAITORSNOWDEN and METHODSANDTACTICS and FYTW.

    1. also Terry stop, reasonable suspicions, exigent circumstance, totality of the circs…

      hth

      smooches

  4. “the right of the people” to be free from “unreasonable searches and seizures”

    But the person has been *arrested*, so any searches and seizures are automatically “reasonable”.

    See, that wasn’t so hard, was it? 8-(

    1. If I’m arrested for jaywalking and I have my wallet with my ID, what could the police possibly need with the information on my cellphone?

      1. To snag you in a RICO case, and to frame you for drug dealing.

        1. Sadly, that was going to be my response too.

  5. Encryption and a long PIN (I use 8 digits). It also works for a stolen or lost phone.

    1. And consider avoiding fingerprint sensor — they might not be able to compel you to give your PIN, but I bet they could grab your hand and force you to touch your phone.

    2. I think you would be saying good-bye to your property if they can’t easily get into it.

      1. What are you saying, cops would steal?

        1. No, it’s “Asset Forfeiture”

        2. “Oops, sorry” as the boot comes down on your phone. Great way of keeping people from taking video of the latest brutality incident.

          1. Sucky, but I’d rather have the cops destroy my phone than get all the data from it, frankly.

            (Yes, I know the NSA can already just grab it off the ether, but the local police are less handy that way.)

    3. What will be interesting is – assuming the current cases yet again erode the Fourth Amendment – what will happen when the police are confronted with a technological impediment to their search. Will refusal to provide your PIN be grounds for an obstruction charge? Will a technology that wipes your phone’s memory after repeated failed inputs result in a destruction of evidence charge? The latter would require a presumption that a phone contained evidence of wrongdoing. How far are we from that leap, ie we are all presumed criminals?

      1. I am seriously thinking about starting a company to create digital tools to protect privacy and to empower individuals in situations like these. I am sure that some of these things already exist, but they are either a) not marketed sufficiently well for people to know about them; or b) not user-friendly enough for them to be practical to the average moderately-tech-savvy Joe.

        If only I had those things . . . you know, technical abilities.

        1. http://www.boeing.com/boeing/d…..index.page

          Totally available to the public…oh wait…

          1. Of course the other trick is that if NSA is able to break privacy tools that are believed to be secure, such privacy tools could end up being huge honeypots for the feds.

  6. so, what are the odds on this falling under the penumbra of FYTW?

  7. The court will side with the state, and it will be business as usual. If they see someone they want to search, simply arrest them for disorderly conduct, search away and if they find nothing the charges can be dropped later.

  8. Hopefully this practice (which seems to be SOP) is ruled unconstitutional, not that it would help me up here in Canukistan but it would be a great ruling anyhow. Also the border guards tend to do this all the time to flagged travelers, fuck them they are the worst.

    1. Of course the border agents will still be able to do that no matter what. I’ve always thought that searching electronic devices at the border is dumb. There is this thing called the Internet that allows you to send whatever information you want across borders with no controls at all. They just do it because they can.

      1. They do it because the news doesn’t trumpet whether the “terrorist” they caught at the border is either smart or stupid. All that matters is the catch and a dumbass terrorist is just as valuable as a genius one in that regard.

  9. Because jaywalkers have proven time and again to have Pablo Escobar on speed dial. How else can we catch the bad guy without rifling through all your shit? C’mon, it takes a village.

  10. Well, let’s see. Do they need a warrant to search your house?

    Questions?

  11. Sadly, given the precedent and the current state of the court, I doubt sincerely this will be reined in.

  12. There is not much information they can get from my 8 year old flip phone, but still… why the heck did do we have a Constitution if a bunch of appointed lawyers can make it read anything they want?

  13. “This exception is designed to help law enforcement prevent the destruction of evidence and to discover any evidence or weapons that might have been concealed.”

    Once police confiscate the cell phone, neither of these policies are applicable.

    1. To be fair, I can wipe a cell phone remotely.

      But if I am that clever, I will also use a PIN.

      1. Savvy PDs put your phone in an electrostatic bag until they can get to it.

        If you use a microSD card your PIN isn’t going to matter for its contents.

        Not busting your balls… just trying to help.

  14. Since the assumption here is that SCOTUS will strike another blow for state control, let’s place some bets: what is the vote, and which judges vote which way?

    1. Thomas will side against the state.

      1. RACIST

  15. This SCOTUS sides with power almost every time.

    They do not seem to care if it is government or corporate.

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