JURIST Guest Columnist Hanni Fakhoury of the Electronic Frontier Foundation questions whether the high court will use this latest opportunity to modernize Fourth Amendment protections…

The US Supreme Court recently agreed to review two cases—United States v. Wurie and Riley v. California—dealing with the Fourth Amendment’s application to new technologies. The specific issue in each case is whether police can search a cell phone, without a search warrant, after arresting someone. But while the issue may seem narrow, these cases provide the court with another opportunity to decide what the Fourth Amendment means in the 21st century.

Is a Cell Phone a Pack of Cigarettes?

The Fourth Amendment to the US Constitution prohibits “unreasonable” searches, which generally means that police must have a warrant before “searching” a person or their “houses, papers, and effects.” But there are a number of exceptions to the warrant requirement, one of which permits police to search someone incidental to their arrest. These searches are “reasonable” because of the need for officers to protect themselves from hidden weapons and to secure any contraband or evidence that could be destroyed.

At one time this exception was interpreted quite broadly to permit searches of the desks, safe and file cabinets in a one-room office. But in 1969, the Supreme Court in Chimel v. California narrowed the searchable “area” to the arrestee’s physical person or “the area within the control of the arrestee.” That included “containers,” defined as an item capable of holding another object, found on the person or in an area within their control, like a pack of cigarettes in an arrestee’s jacket or clothing. But a warrantless search of personal property not immediately associated with the arrestee, or a search of the interior of a car when the arrestee cannot actually gain access to items within it are not permitted. Police don’t have to actually believe their safety is threatened or evidence will be destroyed before searching without a warrant since searches incident to arrest are justified by the mere fact of arrest.

There is a significant judicial split when it comes to applying these rules to cell phones, and the two cases before the Supreme Court show the differing approaches.

In Riley, police looked at pictures, videos and potentially text messages in a Samsung smartphone without a warrant. The evidence was admitted at Riley’s criminal trial under the California Supreme Court’s decision in People v. Diaz, which ruled police could search a cell phone incident to arrest. Diaz found a cellphone found in an arrestee’s pocket was “immediately associated” with the arrestee. The storage capacity of cell phones didn’t matter because the validity of a Fourth Amendment search did not depend on the character of the item being searched. The court worried that creating a rule that determined whether police could search based on the type of phone at issue would be difficult for police in the field to apply.

At least four circuit courts and a number of state appeals courts have reached the same conclusion, permitting police to search a cell phone incident to arrest. Although the Supreme Court declined to review Diaz in 2011, it granted Riley’s petition for certiorari but narrowed the issue to only cover whether evidence admitted at trial was obtained through an unconstitutional search of the phone.

In Wurie, police searched a simple flip phone, observing the picture set as the “wallpaper” and looking through the call log. The US Court of Appeals for the First Circuit found the search unconstitutional, noting that the storage capacity of modern cell phones is “immense,” containing far more personal pieces of information than would be found in physical items, like a purse or an address book. But apart from emphasizing the nature and scope of the item being searched, the First Circuit also focused on the nature and scope of the search itself. Finding that a cell phone search was not justified by either of the justifications in Chimel—officer safety and evidence preservation—it found the search unconstitutional. The government did not (and could not) argue that a cell phone search was necessary to protect officers. But it did argue that a search was necessary to look for and preserve evidence that could be remotely destroyed. The First Circuit rejected that argument, finding there were alternative ways to preserve the evidence on the phone. Police could place the phone in a faraday bag, which prevents the phone from receiving a signal, or pull the battery or SIM card. Most notably, if evidence preservation were really a concern, police would be better off securing the phone immediately upon arrest rather than spending precious time searching it instead.

A minority of courts has reached the same conclusion, including the Supreme Courts of Ohio (PDF) and Florida. The government asked the entire First Circuit to rehear Wurie en banc, but the court declined, with Chief Judge Lynch writing (PDF) separately that the Supreme Court needed to resolve the split, which it agreed to do.

An Opportunity

Now that the US Supreme Court will resolve this split, hopefully it will rule that the massive amounts of personal data stored on a phone makes it too far removed from “the person” and the original justifications for the exception to be allowed incident to arrest. But beyond this specific issue, these cases present the court with another opportunity to determine the impact technology plays in determining Fourth Amendment protection.

More than a decade ago, the court in Kyllo v. United States noted that technology has the power to “erode” Fourth Amendment privacy. Today, technological advances have given police powerful new tools—drones, stingrays, facial recognition software, rapid DNA analyzers—to investigate crime and conduct surveillance. Yet courts are slow to keep up with these technology changes. As constitutional challenges to new forms of warrantless electronic searches, seizures and surveillance have been raised before lower courts, the government has relied on faulty analogies to older cases involving dissimilar physical items or primitive technologies to defeat Fourth Amendment challenges. So a 1979 case permitting police to collect, without a warrant, the phone numbers one person dialed has been stretched to justify the NSA’s bulk collection of phone records from every American. Here, whether police can search a cell phone incident to arrest has boiled down to whether a cell phone is like a pack of cigarettes or not. Wurie and Riley give the court a chance to reign in government overreach and abuse, provide clarity to the public—who will be better informed about their privacy rights and can take affirmative steps to protect themselves—and give police clear, easy to follow rules about what they can and can’t do in the field.

But the court’s recent track record suggests it may not tackle these pressing constitutional questions. In 2010, the US Supreme Court avoided answering the question of whether people have a Fourth Amendment expectation of privacy in text messages sent to a city issued pager in City of Ontario v. Quon. Rather than determining the Fourth Amendment question directly, the court assumed the Fourth Amendment protected the texts but found the search nonetheless reasonable as a valid government workplace search. Justice Anthony Kennedy wrote the court needed to “proceed with care” before “elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” despite the fact the court was dealing with messages sent to a pager, a clearly outdated piece of technology by 2010 (if not earlier). As a result, law enforcement must rely on a patchwork of federal and state statutes and case law to determine if and when they can access the contents of electronic communications.

Similarly, in its 2012 decision in United States v. Jones, the court had an opportunity to determine whether people have an expectation of privacy in their public movements over an extensive period of time so that police needed a search warrant to use a GPS device to track an individual’s car for a month. But the court resolved the issue by focusing on trespass, holding that the Fourth Amendment was violated when police physically installed the GPS device onto a car without a search warrant in order to obtain information. This property-based approach to the Fourth Amendment, dating back to decisions from the 1920s, had been considered outdated, replaced with a focus on an individual’s expectation of privacy following the Court’s 1967 decision in Katz v. United States. Indeed, the two concurring opinions in Jones, signed onto by a majority of the justices, lamented that technology was evolving rapidly and a physical trespass may no longer be necessary to track a person’s location over an extended period of time. Again, local and federal law enforcement has had to rely on patchwork law to determine whether they can install a GPS device. The larger questions about expectation of location privacy continue to be hotly contested, as seen in the many legal challenges to cell phone tracking filling up dockets around the country bear this out.

Just like it did in Quonand Wurie, the court has also given itself a way out from answering the weighty questions posed in Riley and Wurie. It narrowed the grant of certiorari in Wurie to focus only on whether the evidence admitted at the trial was the product of an illegal search. In effect, the court could find that even if there was an error, it was harmless, not requiring Riley’s conviction to be reversed and allowing the court to bypass answering the question definitively. Wurie gives the court with two ways it can issue a narrow decision since the search involved a flip phone, not a smartphone, and the officers only looked at the phone’s wallpaper and call log. The court could issue a limited decision, issuing a ruling that only applies to officers searching non-smartphones or, like the Massachusetts Supreme Judicial Court did, allowing police to search a call log incident to arrest, and saving for another day the issue of broader searches.

But if the court takes serious what it said in Kyllo, that it is “foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology,” then it should decide the issue head on and not piecemeal. Beyond clarifying the rule on cell phone searches incident to arrest, the court’s guidance on how the Fourth Amendment applies to new technologies is important as technology continues to advance, and the government, whether local police or the NSA, threaten to further intrude on expectations of electronic, communication and associational privacy. Indeed, permitting police to search a cell phone incident to arrest, giving law enforcement access to a wealth of personal detail about a person, is worse than the broad, open-ended searches of rooms and buildings incident to arrest Chimel specifically did away with.

The US Supreme Court once again has an opportunity to recalibrate the balance and explain that the Fourth Amendment is very much alive and well in the 21st century. For the sake of every American who uses a cell phone—approximately ninety-one percent of the US population—let us hope the court takes it.

Hanni Fakhoury is a Staff Attorney with the Electronic Frontier Foundation and focuses on criminal law, privacy and free speech litigation and advocacy.

Suggested citation: Hanni Fakhoury, Will Supreme Court Bring the Fourth Amendment into the 21st Century?, JURIST – Hotline, Mar. 5, 2014, http://jurist.org/hotline/2014/02/hanni-fakhoury-cell-phone-privacy.php.