Hard to believe that James Madison, the father of America’s unique Bill of Rights (recently recited by the U.S. Congress while in session), wouldn’t have a problem with warrantless searches of a cell phone once he figured out what a cell phone was and, more importantly, what information the typical phone contains. Given that the Fourth Amendment to the Constitution was intended to prevent similar government intrusions by King George III and his loyalists, admittedly in a much lower technological way, Madison would likely say the California Supreme Court’s decision in People v. Diaz,[1] creates an exception that swallows the intent of the whole amendment.
Interestingly, as hostile as the U.S. Supreme Court has been in the past decades to any expansion of rights under the Bill of Rights (with the noted exceptions of gun ownership and the right to trial of all important legal issues) in 2009, the Court signaled (do I dare say) a halt to the erosion of our privacy rights in the case of Arizona v. Gant,[2] at least in the arrest situation — a case which was ignored by the majority in the California Supreme Court’s Diaz decision. Pay no attention to those pesky decisions that don’t fit our reliance on 30-year-old cases, says the Wizard of Oz. Ignore them and maybe they will go away, says a majority of the California Supreme Court.
Although what constitutes an arrest has become complicated under a plethora of higher and lower court opinions, suffice it to say the conventional thought of an arrest consisting of being handcuffed and taken down to the police station, may or may not be an arrest under the law. Depending on the circumstances and the jurisdiction you are in at the time, a speeding ticket could be an arrest that could lead to a search of your cell phone, including those sexy pictures of your significant other. I would suggest password protecting your whole phone which could potentially force the police to properly get a warrant which the Fourth Amendment requires.
To those of you who say, “what is the big deal, I have nothing to hide,” I say send me your Iphone, your Droid or your Palm so I can take a look through the whole thing to see if there is anything I might find embarrassing to you. Then, if I felt like it, I could find a way to introduce the information in some court hearing which would make it public, then put it on the internet, and before you know it, you have the latest claim to fame of a YouTube video or picture “gone viral.” All because you might have been speeding.
Here are the historical and legal details:
The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
First, in my homage to U.S. Supreme Court Justice Antonin Scalia’s originalist view of how we should interpret the Bill of Rights, that is, look to the historical record at the time of passage to determine the real confines of these rights, I say historically Madison would have disapproved of the California Supremes’ decision. I turn to the scholarly work of noted Yale law professor Akhil Reed Amar in his book The Bill of Rights.
Amar argues that there was a linkage between the First and Fourth Amendments in the founders’ minds. That is, great “exactitude” would be necessary before a search would be considered reasonable if the search yielded material covered by the First Amendment. Needless to say, most of our phones contain material covered by the First Amendment, e.g. who we associate with, what religion, if any, we adhere to, and perhaps some of our proclivities kept in the sanctity of our homes.
Additionally, Amar says the founders thought there were safeguards of this right in the Seventh Amendment protecting our rights to civil trials. This, of course, was before the 20th century development of the controversial exclusionary rule. That rule prevents the use of unconstitutionally obtained evidence in a criminal case because the courts concluded it was the only way to attempt to prevent unconstitutional conduct by government officials, i.e. law enforcement. An unreasonable search was considered a trespass in the 18th century, which would be actionable for damages in the courts.
Amar says the founders at the time of the adoption of the Fourth Amendment were mindful of the 1763 English case of Wilkes v. Wood[3] in which, Wilkes, a critic of King George III, was awarded a “king’s ransom” in damages by Lord Camden after the King’s henchmen broke into Wilkes house and rummaged though his personal papers (similar to what we now might have in our phones). Wilkes was also sent to the Tower of London and freed by Lord Camden in a habeas corpus procedure. They both became pop star heros in the colonies, and it is why we have several cities and counties in the original colonies named Wilkes, and that the Baltimore Orioles play in Camden Yards.
Second, the U.S. Supreme Court precedents relied upon by a majority of the California Supreme Court found certain warrantless searches reasonable and therefore valid when they were incident to an arrest. These included searching for weapons to protect the safety of the law enforcement involved in the arrest, and searching for evidence closely associated with the body (such as clothing or something in a person’s pockets) to protect the destruction of such evidence. Both sound reasonable.
As often happens, however, law enforcement took those decisions to mean they could search everything about the person, e.g. their car even hours after the arrest. Cases where these extended searches took place began to be proscribed by the Supremes. In United States v. Chadwick[4] the Court said the arrest of a person when he got off a train from San Diego to Boston didn’t allow the officers to go into a double‑locked footlocker in the trunk of his car.
In the Gant case, the court said the warrantless search incident to an arrest was unconstitutional when the officers searched his car (finding cocaine in a coat pocket) after he had been arrested for driving on a suspended license and placed in the rear of the police car. The court said:
1. police could not reasonably have believed that the defendant could have accessed his car at the time of the search (he was already in the back of the police car); and,
2. police could not reasonably have believed that evidence of the offense for
which respondent was arrested might have been found in the car since he was arrested for driving with a suspended license.
Bear in mind that we are talking about warrantless searches. The government authorities under the Bill of Rights have the express right to go to a magistrate (judge) establish probable cause (pretty simple process in this day) and obtain a warrant for the search of the phone. But they can’t just do it for the fun of it.