Warrantless Cell Phones Searches Raise Serious Constitutional Concerns

June 30, 2011 (Press-News.org) As technologies develop at an exponential pace, courts across the country are left scrambling to address the issues they create. The world we live in is becoming smaller and smaller as social media and smart phones provide more and more information about users' personal lives. Invariably, judges and members of law enforcement are forced to confront the privacy concerns these platforms generate.

Specifically, courts all across the United States are in the midst of resolving the issue of whether searching cell phones without a warrant during an arrest infringes on individuals' constitutional rights to privacy. The outcome of this matter may have serious repercussions for criminal defendants in New York.

Decisions on this subject vary across jurisdictions. Judicial deliberations are centering on how cell phones ought to be classified and the privacy expectations under the Fourth Amendment to the United States Constitution to people carrying them.

Fourth Amendment Protections

The Fourth Amendment guarantees citizens the right to be free from unreasonable searches and seizures. Presumptively, individuals have a reasonable expectation of privacy in their home, person, papers and effects (the things they own). A warrant is required before people or their possessions may be searched. To obtain a warrant to search any of these things, law enforcement must show a judge or magistrate that there is probable cause to believe a crime has been committed.

Courts have generally shied away from a precise definition of probable cause and tend to focus on the circumstances. The general concept refers to facts and circumstances that would lead sensible people to believe it is more likely than not that a crime has been committed.

However, there are some exceptions to the warrant requirement. For example, law enforcement officers are permitted to search people, and the area within their immediate control, when they are arrested. The reason for this is to preserve evidence and provide safety to all parties concerned.

Courts Divided on Warrantless Searches of Cell Phones

This past January, the California Supreme Court ruled that cell phones could be searched during the course of an arrest and any information gleaned from them could be used as evidence. The decision was largely based on case law from the 1970s allowing police officers to search clothing and cigarette packages of subjects being arrested. The judicial panel, led by Justice Ming Chin, determined that cell phones are analogous to these personal items.

However, Justice Kathryn Werdegar strongly disagreed with the majority's opinion. She distinguished between the privacy rights individuals may have in their physical person and the privacy rights people may have in the data they are carrying.

"A contemporary smart phone can hold hundreds or thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and other documents, as well as records of the user's telephone calls and Web browsing. Never before has it been possible to carry so much personal and business information in one's pocket or purse. The potential impairment to privacy if arrestees' mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great," she noted.

A December 2009 Ohio Supreme Court decision tackled the same issue and ruled that a warrantless search of cell phones does violate the Fourth Amendment. The court found no reason why the information found in cell phones was a safety threat to arresting officers nor why evidence contained in the devices would be in danger of being lost while in police custody.

Implications for New Yorkers

Although the California ruling will likely be appealed to the United States Supreme Court, there is currently no definitive precedent for New Yorkers. Until the issue is decided, citizens carrying anything from cell phones to tablet computers should understand that anything they carry could be searched if they are arrested.

If you are facing criminal charges of any kind, it is critical you obtain experienced legal representation as quickly as possible. It is important to hire a local attorney familiar with search warrants; one who can advise you of your rights.

Article provided by Goldberg & Allen, LLP
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