Today the Supreme Court will hear two cases on the same issue: Can cops search your phone without a warrant, incident to arrest? Last year, the court ruled that police could force you to swab for DNA after you're arrested. But the court's recent ruling on GPS tracking in US v Jones, and Justice Sotomayor's excellent concurrence in that case, suggest that we should nonetheless have hope.
What's at stake in Wurie and Riley really couldn't be more significant. If the court agrees with the government, which argues that police need to be able to rifle through our cell phones without warrants in order to ensure we don't delete or destroy evidence of a crime, the already weakened Fourth Amendment will be practically dead.
If local cops want to read all of your emails, text messages, and search history, and rifle through your personal photos (yes, including those photos), all they'd have to do is follow you around and wait for you to break one of the many laws you break every day, like jaywalking, to arrest you. Or the officers could simply arrest you for no legitimate reason, as happens to untold numbers of people every day. Even if the arrest is later deemed illegitimate, the cops would have already rifled through your personal "data trove", as the NYT accurately put it, meaning the damage would be done.
Precedent holds that officers can search the immediate area and belongings of an arrestee without a warrant, but that's only to ensure that the person under arrest doesn't have a weapon or something dangerous on their person, and to preserve evidence. Cell phones do not contain weapons, and the evidence they may contain can be easily secured without a warrantless search. It's hard to understand how any reasonable person could accept that smartphones or cell phones are the same as backpacks when it comes to searches during or shortly after arrests. Phones are not weapons. They do, on the other hand, contain extremely sensitive information about our professional and personal lives. Allowing police to search them without warrants would be the kiss of death for digital privacy in the 21st century.
As the NYT put it in an editorial calling for a warrant requirement,
permitting police officers to search a mobile phone, or any digital storage device, essentially gives them access to someone’s entire life; allowing them to do so without a warrant renders the Fourth Amendment’s guarantee against unreasonable searches and seizures meaningless. This is not a hypothetical concern. There are 12 million arrests in America each year, most for misdemeanors that can be as minor as jaywalking. The majority don’t end in a conviction, and yet if the government wins this case, any one of them could result in the warrantless search of the person’s phone.
The Supreme Court has recognized the need to adapt to new technologies, as when it ruled that the government attaching a GPS tracking device to a private car was a Fourth Amendment search. For better or worse, mobile phones have become repositories of our daily lives, and will become only more powerful over time. As a rule, the police should have to get a warrant to search them.
Amen. Let's hope the court agrees.