When the Fourth Amendment became part of the Constitution, in 1791, protecting the people “against unreasonable searches and seizures,” there was less existential uncertainty about the meaning of “persons, houses, papers, and effects.” While the amendment has evolved to permit limited, warrantless search of arrested individuals, its application to new technology is unclear. Tuesday, the Supreme Court may begin to provide some clarity as it hears oral argument in two cases, one state and one federal, contemplating whether the Fourth Amendment permits law enforcement to search an arrestee’s cell phone.
In Riley v. California and U.S. v. Wurie, the high court faces a raft of pragmatic and philosophical questions: Is a cell phone like any other item “incident to arrest” that can be seized in the interest of protecting police officers and preserving evidence? Or is it more like the footlocker in a suspect’s car trunk that earlier case law shields from warrantless search? Is there a difference between a smart phone and an older-model flip phone for Fourth Amendment purposes? Does an arrestee have an expectation of privacy when it comes to cell phone location data, call logs or the content of conversations?