The Supreme Court this week continued its foray into the implications of technology for the Fourth Amendment with a unanimous ruling that the government generally requires a warrant before it can search a cellphone seized in the course of an arrest. (Why “generally”? See below.)
The Court (at least eight of its members – Justice Alito differed, again see below) reaffirmed that its earlier decisions allowing warrantless searches incident to arrest were based on concerns for officer safety or preservation of evidence. A cell phone, at least once it has been secured, presents no further threat to officer safety. Although delay in accessing the phone’s contents could enable remote wiping or other evidence destruction, the Court noted that the police possess options to make that more difficult, and, in any event, the intrusiveness of a cell phone search outweighs concerns for evidence preservation.
As the Court stated:
In 1926, Learned Hand observed . . . 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.” . . . . 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.
Although the decision has been nearly universally acclaimed, this sweeping result did not always seem foreordained. Indeed, in one of the two lower court cases that together gave rise to the decision, the state court (in California) had upheld the warrantless search.
Okay, So Why “Generally”?
So why did the Court (and this blog post) characterize the ruling as stating that warrants generally will be required?
The Court’s decision focused solely on warrantless searches incident to arrest and not on other potentially available exceptions to the constitutional warrant requirement. In fact, the Court expressly noted that another well-established exception – for “exigent circumstances” – remains undisturbed by its decision. However, unlike searches incident to arrest, warrantless searches based on exigent circumstances, in the words of the Court, “require a court to examine whether an emergency justified a warrantless search in each particular case.”
Is This the Last Word?
Lost in most media reports about the decision was Justice Alito’s lone concurrence. Although the justice agreed with the result in the case, he wrote separately to communicate his somewhat different understanding of the permissible scope of searches incident to arrests. Moreover, he implicitly seemed to invite Congress to update its laws governing searches and new technologies, leaving open perhaps the possibility that Congress or state legislatures might in some fashion weigh in on what process should be required.
Whether the other eight justices would agree with some sort of substantively truncated protection seems dubious given the categorical nature of their ruling. However, it is certainly true that, in some respects at least, the door is open. For example, many states have enacted expedited processes for obtaining warrants in suspected DUI stops to ensure that evidence of intoxication can be gathered before the suspect has a chance to “sober up.”
The Court itself alluded to the fact that “warrants may be obtained with increasing efficiency” in explaining the modest burden its ruling will impose. In many states and circumstances, a warrant has grown to resemble an almost “check the box” sort of exercise; nonetheless, reaffirmation of its importance is another signal that this Court is acutely aware of the changing implications of technology for traditional conceptions of privacy and is not unwilling to extend those protections to new and previously unforeseen circumstances.
The Court’s analysis reflects a careful review of the practical implications of the privacy intrusion. In that respect, the Court continues in a long line of cases dating back to the invention of the old-fashioned wired telephone and, more recently, GPS tracking.
Ultimately, after all, cell phones are not like pockets, notwithstanding the fact that they often are found there.