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Cops should have to get a warrant before searching smartphones

September 9, 2013 - Andrea Johnson
Should the police have to get a warrant before they search your cellphone after you've been arrested? The U.S. Supreme Court may be about that question, according to Alison Frankel of Reuters.

Back in 2009, a San Diego gang member named David Riley was convicted of a drive-by shooting based largely on evidence police obtained when they searched Riley's smartphone. Riley's lawyers argued unsuccessfully that the search was illegal under the Fourth Amendment; the California Supreme Court declined to hear the appeal. Riley's lawyers are petitioning the U.S. Supreme Court to decide the question. The Supreme Court is also being asked to consider a similar case out of Boston, Wurie v. U.S. In that case, the U.S. Court of Appeals ruled that police did violate the Fourth Amendment when they searched Brima Wurie's cellphone in 2007. Wurie was suspected of selling two bags of crack cocaine and was eventually convicted in federal court on drug charges. The Appeals Court ruled in May that the search of his phone was illegal.

From a personal standpoint, I won't lose much sleep if a violent gang member and a drug dealer spend long stints beyond bars. But from a civil rights standpoint, I'd rather let the gang member and the drug dealer both go free before I'd give away one iota of my own liberty. Privacy is probably all but impossible in this day and age, given the snooping that the National Security Agency has reportedly been doing, but that doesn't mean we shouldn't try to slow law enforcement down a bit.

Police most definitely should have to prove probable cause and get a warrant before they search someone's smartphone or iPad or any other electronic device on which people carry personal photos and messages and contact information for their friends and family members. That is the standard that is required for a search of someone's home or personal vehicle, as well. If a patrol officer stops you for speeding, he doesn't have a right to open up your trunk and rifle through your things without your express permission or reasonable suspicion that something back there is suspicious. If a police officer comes to your door, you don't have to let him in the house without a search warrant. The same rules should apply to the electronic devices that contain so much of our personal information.

I hope the Supreme Court will take one or both these cases and provide law enforcement with some guidelines for using the Fourth Amendment in the 21st century.


Article Comments



Sep-20-13 12:07 PM

Privacy may be quaint in this day and age, but there's a difference between what you freely choose to share with the public and what you don't. There are many things we do that are not the business of government or law enforcement and are not necessarily illegal.


Sep-18-13 6:10 PM

I hope you're joking. I have no desire to sign away my constitutional rights.

Sep-15-13 11:45 AM

I have nothing to hide and therefore go ahead and search my phone, you'll probably be bored to death. I think the people who are arrested, and feel this is a violation are people with something to hide. In my opinion, I think they should be able to search a persons phone or electronic device after an arrest and hope this becomes the norm.


Sep-11-13 3:59 PM

A sealed letter counts too.


Sep-11-13 11:47 AM

If the Constitution is truly a living document, we should speak of the Fourth Amendment in terms of concepts instead of giving it a literal reading. It applies to everything it applied to back when it was written as well as to other areas where people have some expectation of privacy. How about a sealed letter? I don't imagine the police can open it without a warrant even if it is in plain view, though they could pay note to the address written on the outside of the envelope or to the writing on a post card if it is turned up on a desk. I'd apply the same principle to a smart phone. If I happen to have a webpage open or a photo up on an iPad when the police stop me, perhaps they can use the plain view argument. But if they attempt to access other information or break a pass code, they should have to get a warrant. And I do believe it should apply even after an arrest.


Sep-11-13 11:15 AM

Just something to think about. Does the Bill of Rights protect general concepts, regardless of time, place, and degree of technological advancement? Or is it limited only to technologies that existed in the Founders' time?


Sep-11-13 11:13 AM


I seem to recall a great deal of confusion over what another amendment in the Bill of Rights actually protects...single-shot, muzzle-loading muskets. I say that anyone who tries using THAT argument shouldn't have any expectation that the 4th Amendment will protect their cell phone from unreasonable search and seizure, either. After all, the Founders could not have possibly envisioned such radical advances in technology and thus would never have intended 4A to cover that as well...


Sep-11-13 11:11 AM

THIS should be an interesting conversation and I'm going to make it interesting.

Funny thing about the Bill of Rights is the way it protects concepts, not the specific particulars of any one time period. So while the 4th Amendment, written in the late 18th Century, reads, "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", we should not construe that to protect ONLY "persons, houses, papers, effects" that existed in that time period. The standards used for those things should apply to cell phones.

I seem to recall a great deal of confusion over what another amendment in the Bill of Rights actually protects...single-shot, muzzle-loading muskets. I say that anyone who tries using THAT


Sep-10-13 3:36 PM

<cont> of an arrested person wouldn't be any different than searching a purse, backpack, briefcase, luggage, etc...others argue that the shift in technology has changed so much in that far more personal information can be stored on a phone than in a brief case, that there is more reasonable expectation of privacy that should now attach to cell phones.

It is quite fitting that SCOTUS would now hear arguments, since reasonable judges have found for both sides of the argument. This didn't spring forth because cops were just randomly grabbing up phones and looking for charges to sling at people. The searches were performed post arrest in the same manner that they have been judicially recognized as perfectly lawful in the previously recognized VALID warrantless searches of persons and property in their control.


Sep-10-13 3:30 PM

Andrea, You are in the ball park but not quite on the mark when it comes to when police can and can not search and when probable cause is required. For an officer to search a motor vehicle without a warrant the standard is Probable Cause, NOT reasonable suspicion, which is a LOWER standard of proof. (see Caroll v. United States, also US States v. Ross).

The key point you are leaving out of this particular debate is that these searches of the suspects phones were POST ARREST. One exception to the warrant requirement and one that doesn't require even the slightest probable cause is the Search Incident to Arrest exception. The principal holds that the suspect and the property under his/her control may be searched incident to being arrested. An officer arresting someone may search their person and say they were wearing a backpack, that's lawful too. The recent Arizona v Gant ruling limited this search with motor vehicles however. Some argue that a search of the cell phone on the perso


Sep-10-13 8:26 AM

The line about "slow law enforcement down a bit" was probably injudiciously phrased. I was thinking mainly of the NSA. But I hope they do manage to convict drug dealers and killers within the law. In both of the above cases, they surely had enough probable cause to get a judge to grant them a speedy warrant to search the phones in their possession. However, I detest the idea of warrantless searches.


Sep-10-13 8:21 AM

Entering a suspect's home without a warrant would help in a homicide investigation too. So would the ability to search suspects' cars at will. Both are against the law. I know law enforcement have a hard job to do and I respect their efforts, but I also believe that protections need to be in place because for citizens' civil liberties, even if it sometimes protects criminals. The Fourth Amendment needs to apply to smartphones.


Sep-10-13 1:14 AM

They shouldn't have to, The phone is part of evidence and could help in a homacide case. God bless the Law Enforcement. Thank You :)


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