Today at SCOTUS: Do Cops Need a Warrant to Search Your Cell Phone When You’re Under Arrest?

The U.S. Supreme Court will hear arguments today in a pair of
major Fourth Amendment cases testing the reach of police powers. At
issue in both
Riley v. California and
United States v. Wurie is whether law enforcement must
obtain a warrant before conducting a cell phone search incident to
arrest. As I explained in a
recent column, the Court’s answer to that question is likely to
have a profound impact on the rights of all Americans in their
dealings with the police:

According to a long line of Supreme Court precedent, the police
do not need a warrant to search the individuals they arrest, and
that includes both the persons and possessions of the arrestees,
including any bags, containers, or other items they were carrying.
Furthermore, the police may conduct a warrantless search of the
immediate vicinity around the arrest site. This exception is
designed to help law enforcement prevent the destruction of
evidence and to discover any evidence or weapons that might have
been concealed.

The rise of the cell phone complicates this picture. Unlike
diaries, notebooks, or briefcases, all of which the police are
allowed to search incident to arrest, cell phones contain
previously unimaginable amounts of personal information, including
not only words and images but also GPS location data. In other
words, should getting arrested for a minor offense like jaywalking
be sufficient to allow the police virtually unlimited access to
your private affairs in search of additional wrongdoing?

These cases go to the very heart of the Fourth Amendment, which
not only protects “the right of the people” to be free from
“unreasonable searches and seizures;” it requires the government to
show “probable cause” and describe “the place to be searched, and
the person or things to be seized” before a warrant will be issued.
That language was added to the Constitution in order to repudiate
the colonial era practice of issuing “general warrants,” those
notorious blank checks cited by snooping British officials. It
takes no leap of imagination to see a warrantless cell phone
search—which gives today’s police snoops a window into every nook
and cranny of one’s private life—as the modern day equivalent of
the justly banished “general warrant.”

We’ll find out soon which way the Supreme Court sees it.