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Eyeing The Cover But Not The E-Book

When police make an arrest, they can search that person and the items in the person’s immediate possession. Such a “search incident to arrest” has been authorized by the courts since 1914.

We live in a different world, however, 100 years later. In 1914, a person might have carried papers indicating his identity or home address. A pocket or billfold might have held purchase receipts or an incriminating letter. But in 2014, 90 percent of American adults carry at least basic cellphones that often contain detailed contacts, call logs and text messages; more than half of us carry more powerful smartphones or tablets that can hold everything from the most intimate of correspondence to meticulous data on the places we have been.

Access to a cellphone, especially a smartphone, offers a far more detailed portrait of the device’s owner than any item a person could have tucked into a pocket a century ago. The Supreme Court recognized this reality last week.

The court ruled unanimously that law enforcement agents must obtain a warrant before searching the contents of an arrestee’s cellphone. The court left open an exception for dire emergencies, such as trying to locate a missing child, but cautioned that the extenuating circumstances would need to satisfy a judge after the fact.

Chief Justice John Roberts, who authored the opinion, soundly rejected the assertion that searching the digital contents of a phone is “materially indistinguishable” from searching physical items in the arrestee’s possession. Such a claim “is like saying a ride on horseback is materially indistinguishable from a flight to the moon,” he wrote. The ruling also protects data stored remotely, “in the cloud,” that can be accessed through an arrestee’s device.

Roberts’ opinion addressed two cases, one state and one federal, that the Court heard together. In Riley v. California, the defendant’s cellphone was searched without a warrant; location data and photographs were used to link him to a gang and to place near the shooting of which he was accused. The California courts ruled the search valid. In United States v. Wurie, the U.S. First Circuit Court of Appeals threw out the defendant’s conviction due to a warrantless examination of the flip-style cellphone’s call log and other data that led to a home in South Boston, where authorities seized drugs and weapons used as evidence in the trial. As Stephen Wemiel noted on SCOTUSBlog prior to the ruling, lower courts across the country have come down on all sides of the issue.

The Supreme Court, however, has now drawn a clear distinction between cellphones and other sorts of personal effects that can be searched incident to an arrest under previous Fourth Amendment jurisprudence. The two traditional justifications for searching someone who has been arrested are to protect police officers and to prevent the destruction of evidence. Roberts pointed out that data on a phone can endanger no one and that police have other ways to prevent remote wiping of data, such as turning a phone off or placing it in a “Faraday bag” designed to block incoming signals.

The Court acknowledged that the decision will affect the ability of members of law enforcement to do their jobs. But Roberts observed that “Privacy comes at a cost,” and added that in the age of email-equipped mobile devices, a warrant can often be obtained relatively rapidly if there is reason for it.

Though the courts have not yet addressed the point, it seems clear that if it is unconstitutional for a police officer to read the contents of your smartphone, tablet or laptop after arresting you, then it is certainly unconstitutional for a customs agent to do so when you do nothing more than cross an international border. And while the ruling has no immediate impact on data collection programs like those of the National Security Agency, law professor Stephen Vladeck told The Washington Post that it is “a cruise missile across the bow of lawyers defending warrantless search programs.” The High Court is clearly unwilling to let digital privacy become collateral damage in the fight against crime, and so it appears doubtful it will accept many privacy casualties in the struggle against foreign aggression or terror.

Most constitutional questions are nether black nor white. Real-world issues come in many shades of gray, in which personal rights and societal priorities sometimes collide. The Court reached a sound conclusion with its ruling that if your mobile device contains “Fifty Shades of Grey,” it is nobody’s business but your own.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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