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Fourth Amendment Rights in the 21st Century

-- By SpencerWan - 22 Oct 2011

With new technology being innovated and used in everyday society, laws have been more and more increasingly insufficient to protect citizens from violations of their rights. One important issue that remains unresolved by courts is whether law enforcement can search through the digital content of a smart phone. I am using the term "smart phone" to mean a cell phone that has increased technological capabilities such as email, software applications, and internet access. Imagine a situation where a man is arrested and his smart phone is confiscated. Under the current law that has not adjusted to the reality of a mobile phone being more than just a telephonic device, the police can now search the phone and its digital content. This can potentially include text messages, emails, bank account numbers and passwords, photos of loved ones, correspondence with lawyers or doctors, and contact information of family and friends. The amount of information we hold fundamentally private can now be found on a device that fits in our pocket. Technology has now put more private information on an individual than ever before. The law must adapt to prevent abuse of this new 21st century reality.

Courts have made exceptions for warrantless searches in two situations: exigent circumstances and searches incident to arrest. The rule for exigent circumstances has been set forth by the Supreme Court as such: “[w]here there are exigent circumstances in which police action literally must be ‘now or never’ to preserve the evidence of the crime, it is reasonable to permit action without prior judicial evaluation.” Applying this rule to smart phones should yield an obvious result. Even if a phone has an automated setting to delete some of its contents after a certain date, any of the data deleted would be available from the cell phone service provider through a warrant. The exigent circumstances exception should not apply to smart phones because once the police have the phone, there does not exist any "now or never" necessity to search the phone without a warrant. Yet, some courts have held the opposite by holding that certain cell phones will an automated delete function can eliminate evidence from the phone. This argument again fails because the likelihood that content on the phone will disappear completely from both the phone and the cell phone service provider is very marginal.

The more likely exception to be used by court to uphold warrantless searches of smart phones will be the http://en.wikipedia.org/wiki/Search_incident_to_arrest[search to incident doctrine]]. Under the search incident to arrest doctrine, the police can search the person and his immediate “grabbing space” to protect against physical danger and to prevent the destruction of evidence. Most courts have used the doctrine to uphold warrantless searches of cell phone content. The court in United States v. Finley decided not to recognize the distinction between a cell phone carrying digital content and a physical container of evidence. Currently, most states have allowed police officers to search cell phones as if they were analogous to containers. However, when the object being searched is now technologically advanced to resemble a computer more than just a cell phone with call records and text messages, the analysis should change.

Searching the contents of a computer incident to arrest has been ruled unlawful in the only appellate court the issue has been argued. The court in State v. Washington ruled that the seizure of a laptop was lawful, but the search of its contents was unconstitutional. This holding clearly supports the rule that a computer is subject to higher 4th Amendment protection than a cell phone. Modern-day smart phones are essentially small computers with phone capabilities as well. The only logical conclusion, therefore, is that smart phones should be afforded the same heightened protection from search of its contents as a computer would.

There are many dangers of treating smart phones like old-generation "dumb phones" as current jurisprudence has seemingly failed to prevent. Police now have access to every bit of information about a person at the time of arrest. Loss of privacy can now occur with mere probable cause. This outcome is incongruent with our fundamental values of privacy and needs to be prevented as the number of smart phone users rapidly increase.

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How does encryption affect search and seizure of computers or smartphones? Can the police require you to unlock your phones for the exigent circumstances warrantless search? If the analogy is to a physical container, don't the rules change if that container is locked?

-- AaronChan - 30 Oct 2011