Will cops be free to search your phone without a warrant?

Will cops be free to search your phone without a warrant?

POSTED: Monday, April 28, 2014 - 11:15am

UPDATED: Monday, April 28, 2014 - 11:23am

(CNN) -- On Tuesday, the U.S. Supreme Court will hear arguments in two cases testing the authority of police to conduct a warrantless search of an arrested person's cell phone.

For the most part, the justices' rulings in cases dealing with the Fourth Amendment go largely unnoticed by the public. Most citizens are not interested in these cases the way they are in issues like same-sex marriage or gun control. On the whole, Americans don't worry too much about search-and-seizure issues because they think these cases don't apply to them

"Those cases only apply to criminals."

"I'm not planning on getting arrested."

"I have nothing to hide."

The sentiment is understandable. Most of these cases involve application of the "exclusionary rule" to throw out evidence like guns or drugs, based on the way it was seized. By definition, suppressed evidence is always incriminating -- after all, if the police only found something innocuous, like a pack of smokes, there never would have been an arrest in the first place!

This does not mean that only criminal defendants have an interest in these cases. The rest of us should pay attention for two reasons. First, most people don't realize how easy it is for the police to arrest a person and seize their property. Second, our private information is no longer on a piece of paper in a safe. It's in the form of data, and it's on our person, or in that thing they call the "cloud." If police can access your cell phone without a warrant, they can access your entire life.

Don't believe me? What's in your cellphone right now? Is there anything you wouldn't want a stranger swiping through? How about the apps on your phone? Do you do any banking or other transactions on there? Cell phones not only contain data -- they are now becoming a portal beyond the device itself, into a third-party world, whether that's your health information, your finances, or anything else out there in the cloud.

And if you're like most people, you're not immune to arrest. Police can potentially arrest you for minor infractions like littering, jaywalking, and traffic offenses. And just because they arrest you, should they be able to swipe through your pictures and text messages? Police can search containers on your person without a warrant if they contain evidence that might be destroyed, or a potential weapon. Unless you can throw your iPhone like a ninja shuriken, it's probably not much of a weapon.

In one of the pending cases, police seized Brima Wurie's Verizon LG phone (remember those?) after a warrantless arrest for a street sale of drugs. The phone began ringing at the station during the booking process, and, without a warrant, police decided to start going through the photos and the call log, using a reverse phone directory to look up addresses associated with numbers, and comparing the residents' likenesses to pictures on the phone.

Police eventually used this information to obtain a warrant to search a house, where they did find drugs and firearms. The question is, should this evidence have been suppressed? Where evidence is the result of an unconstitutional search, it is considered "fruit of the poisonous tree," and courts should throw all the evidence flowing from that bad search.

This is not to say that police can never search for evidence of crimes in a cell phone. They just need to adhere to the Constitution to do it, which means that a neutral magistrate must approve a request for a warrant, and that warrant must be supported by probable cause.

The Fourth Amendment was drafted specifically in response to the perceived injustice of the British "general warrant," which allowed the Redcoats to freely search a citizen's home and papers.

Arguably, a search of an iPhone is an even more invasive search of a person's papers, even when it doesn't occur in a home. Whether it's that crinkly Constitution paper, or the modern-day tablet, the spirit of the "papers" the Fourth Amendment sought to protect is the same.

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