Should the police be able to search a suspect’s cell phone
without a search warrant?
On June 25 of this year, in Riley
, the U.S. Supreme Court in 9-0 decision held that searches
of smart phones and other electronic devices are not subject to limited searches
without warrants in the same manner as people’s wallets and vehicles.
Chief Justice, John Roberts, writing for the High Court, contended:
Modern cell phones are not just
another technological convenience. With all they contain and all they may
reveal, they hold for many Americans “the privacies of life,” … The fact that
technology now allows an individual to carry such information in his hand does
not make the information any less worthy of the protection for which the Founders
fought. Our answer to the question of what police must do before searching a
cell phone seized incident to an arrest is accordingly simple – get a warrant.
The High Court’s ruling has significance for a majority of Americans.
According to a Gallup
survey conducted last December, the must-have devices that Americans own
have changed over the last decade. “Portable Internet-connected devices such as
laptops and smartphones are generally more favored, while older forms of
technology such as desktop computers, VCRs, and basic cellphones are falling
out of fashion.”
Gallup finds that compared to 2005, far fewer Americans own
basic cellphones or use landlines to communicate with each other. Ownership of
smartphones has shot up dramatically over the last decade – 56 percent of us own
smartphones that we store a “digital record of nearly every aspect of our
lives,” ranging from photos and emails to contact lists and text messages.
The High Court’s ruling comes, however, with one small, but
important, caveat. The Court makes clear in their syllabus:
“It is true that this decision will
have some impact on the ability of law enforcement to combat crime. But the
Court’s holding is not that the information on a cell phone is immune from
search; it is that a warrant is generally required before a search. The warrant
requirement is an important component of the Court’s Fourth Amendment
jurisprudence, and warrants may be obtained with increasing efficiency. In
addition, although the search incident to arrest exception does not apply to
cell phones, the continued availability
of the exigent circumstances exception may give law enforcement a justification
for a warrantless search in particular cases.”
Should we still be worried about the possibility of the
police examining the “digital record of nearly every aspect of our lives,” we
keep on our cell phone?
Although many on the left have praised the Court’s decision,
I think we should continue to be worried about our right to privacy even with
I operate from a fairly basic premise, as an arm of the
State, the main goal of the judicial branch is not to restrain power – whether
its own power or the power of the various appendages of the State (which
includes the police) – but to preserve or advance it.
I don't want to under-appreciate the importance of what
seems like a clear-cut victory for those of us on the left, particularly given
the current political climate and given how bad the Robert’s Court has been on
so many other decisions.
But, I’m not drinking the Kool-aide either.
Many of us drink the Kool-aide because we – including many
on the left – believe what we’ve been taught most of our lives about how our
As a part of our political socialization, we learn during
our earliest exposure to civics that the “Founding Fathers,” fearing the
concentration of power in the hands of one person or a small group of people
designed a system government with three branches – the Legislative, Executive,
and Judicial branch.
The Framers of the Constitution sought to check government
power through the separation of powers and a system of checks and balances.
Hence, as a result of the separation of powers, the legislative branch is
charged with the responsibility of passing laws, the executive branch is
supposed to carry them out, and the judicial branch is expected to interpret the
law, punish offenders, and resolve disputes between the other two branches.
As a further check on power, the Constitution requires each
arm of the State to share key parts of the others’ powers, making it easier for
each branch to check the other two.
The most common metaphor used to describe the power of the
Court is that it operates like a referee. One arm of government passes laws, the
other enforces the law. As the referee of the system, the Court objectively decides
when something done by any of the players violate the rules of the game (that
is, the U.S. Constitution). It can tell the President when his actions exceed
those given to him by the Constitution. It can tell Congress if a law it has
passed is in conflict with the Constitution, therefore, no longer a law. It can
tell a state when its law is trumped by federal law. It can check the
behavior of local law enforcement when its tactics violate a right guaranteed
by the U.S. Constitutional.
In short, the Court makes decisions on just about everything
under the sun that may have a profound impact on the lives of every single
citizen or noncitizen in America. It is a testament to the effectiveness of our
public school education that most Americans blindly accept the legitimacy of
their rulings and believe that the decisions, first and foremost, are designed to
protect our “God-given” rights.
Given how deeply ingrained is our belief that the primary
role played by the Courts in our constitutional system is to check the power of
the State – the Congress, the President, the state police, and other government
officials – it’s hard for most of us to imagine that many of the Court’s decisions
may do little more than preserve and protect the power of the State.
My point is that the textbook description of how power is exercised
or the purpose it is used for by the three branches of government, especially the Judicial Branch, is far too
Just how hampered does law enforcement really feel because
of the High Court’s ruling?
One of the things that struck me about this ruling is that
it does not change the status quo. It remains very easy for the police to get a
warrant. Many people in the law enforcement community do not see the Court’s
pronouncement as an impediment to them quickly getting a warrant and perusing through
someone’s phone fishing for evidence of some crime.
Once the police have your phone, there is not much you can
do about it. On the one hand, there are phone apps that allow people to erase
their phones, maybe giving people a chance to prevent the police from gaining
access to their most sensitive information. On the other hand, someone sitting
in an interrogation room or holding cell with no access to technology cannot
remotely wipe their phone to hide information. In the meantime, the police will
be working diligently to get their warrant, which they’ll likely receive rather
In short, it would be very naïve to assume that the nation's
police departments have been told that cell phones are not fair game. The
fishing expeditions will continue, just with a warrant issued under minimal
rather than really high standards.
The bar was not raised by the ruling. The license to go fishing
for evidence has not gotten more expensive to obtain. This ruling does not stop
the police from invading our privacy.
I also have my suspicions about why Thomas, Scalia, Roberts,
and Alito are on the side of Civil Libertarians. They must have something up
the sleeves of those robes they wear.
Admittedly, maybe I'm paranoid or perhaps I've been reading
the Art of War too much.
I think the conservative jurists sided with the liberal
jurists because nothing about this decision places meaningful limits on the
power of local law enforcement.
As a black man, I feel even more, not less, vulnerable after this
If I'm pulled over walking down Albany Avenue in Hartford,
Connecticut, in the black community talking on my cellphone at 2:00AM, nothing
will stop the police from arresting me and obtaining a search warrant to go on
a fishing expedition later that morning. This case says nothing about the type of scrutiny that should occur before law enforcement starts digging
around in one of the most personal areas of our lives, what we store on our
In actuality, that search appears to have been given
legitimacy by this Court, which is perhaps why the four most conservative
jurists on the High Court can agree with the decision, not because they are
sensitive to, say, populist rumblings about the power of the State, but because
they know at the end of the day it protects and, perhaps, expands judicial
power in a way that they are quite comfortable with.
Conservatives value order over chaos. Surreptitiously expanding
(and offering legitimacy) police power in the area of law enforcement is not
anathema particularly when the expansion of that power is more likely to occur probably
on Albany Avenue in the heart of the black community in Hartford rather than
downtown Hartford in the business district populated mostly by whites commuting
from the suburbs to the city for work.
In my next blog post, I’ll talk about some of the emerging surveillance
technologies being used by law enforcement with and without warrants that make
the Court’s ruling in Riley v. California seem even less relevant than it probably is.