Today, the United States Supreme Court ruled unanimously that law enforcement may not search a cellphone absent a warrant or exigent circumstances. The vast majority of law enforcement searches occur incident to arrest and without a warrant. Traditionally, these searches were justified as constitutional by the courts as a way to ensure officer safety and to prevent the destruction of evidence. Neither of these issues was found sufficient in the case of cellphones to avoid the requirement of obtaining a warrant. Indeed, the Supreme Court observed that in today’s high tech world, law enforcement can obtain a warrant in as short as fifteen minutes if the circumstances warrant it. Moreover, in extreme cases, where a cellphone is believed to be used in connection with an imminent bombing or where the cellphone may reveal the location of an abducted child, the court’s existing “exigent circumstances” exception to the Fourth Amendment can be used to justify a warrantless search. The Court today did not forbid law enforcement from searching cellphones. It just reinforced the existing Fourth Amendment requirement of a warrant for this type of search.
In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form— unless the phone is.
The opinion concludes:
Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886)).
Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.
Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to an appeal, consider hiring a certified appellate specialist as your lawyer or co-counsel. Don’t wing it, win it.