With or Without Warrant, Most Cell Phone Searches are "General" Searches

Bells peeled this week because the United States Supreme Court issued a rare a wonderful decision in Riley v California and US v Wurie where it held that police must obtain a warrant prior to searching cell phones of arrestees. While the decision is a great step, albeit a baby-one, in the right direction, I am, well, nonplussed. The conclusion that a search incident to arrest should not include 64 GB of data or more is so axiomatic and fundamental to our constitution, that it’s nearly insulting to the document and our legal principles that the case was even brought that far. Good grief.

The Fourth Amendment to the United States Constitution protects us from unreasonable searches and seizures. It requires the government to obtain a warrant when they wish to come to our homes to search for evidence, fruits of crime or instrumentalities used to commit crimes or when they seek to arrest us. The government is required to amass sufficient probable cause to arrest us or to search and to particularly describe the things to be searched for and the items to be seized.

There are exceptions to the warrant requirement that are supposed to be narrow. In the twentieth and twenty-first century, these exceptions have been broadened to the point that they nearly obviate the need for a warrant. It is a true fact that some police officers serve their entire careers without ever writing or serving a warrant. Nearly 100% of searches and all but a very few arrests are made without warrants these days.

But, there still exists, despite judicial activism and government argument to the contrary, a preference and constitutional requirement for warrants. The purpose of the warrant requirement was to avoid “general searches.” What is a “general search”? A general search, as it was called in colonial times, when folks possessed far fewer possessions and even fewer private, personal things that they could carry around on devices such as cellular phones and mobile computing devices, were searches of homes and other places by government that lacked a particular purpose. The government agents, like militia men, would just show up unannounced and poke through citizens’ belongings. Worse yet, they’d show up and spend the night.

For those readers unfamiliar with colonial history, at that time, colonists didn’t possess much. furniture was fairly sparse, People were fortunate to have two changes of clothes, a few books and, if they possessed twenty pages of paper to write very small to keep a diary, they were lucky. Compare that with today, when we all have many possessions and chief among them is our cell phone and our iPad or other mobile device upon which we have our browsing history, incoming and outgoing calls, text messages to our spouses, children, co-workers, lovers, friends, our vacations plans, political leanings, Facebook, Twitter, Instagram posts, emails, the draft of our next novel, ideas for a political manifesto, ruminations on our next patent, movies, music, financial records, business records and all the rest of our most meaningful musings. This information can span years and it can be as voluminous as the holdings of the entirety of the Library of Congress.

I’m not exaggerating. Compare what a person at the time the Constitution was written could have possessed to a what a person could have held on their person, in their car and in their pockets a mere twenty years ago to today. Twenty years ago, a person could have held a pack of cigarettes, some weed, maybe some heroin and some works and a gun on their person. In their car, they certainly could have had narcotics and weapons. Today, they could hold as much information as all of human history had ever accumulated. Now, if you consider what the Constitution anticipated as far as what the government could search, and what would be reasonable for the government to search either with or without a warrant, i’m pretty sure that the Fourth Amendment anticipated that given the amount of data a person totes around today that a warrant is definitely required.

Now here’s the thing– the latest Supreme Court decision was mostly focused on the easy stuff about the Fourth Amendment warrant requirement– probable cause. Every government search must be supported by probable cause. The big BUT here that the Supreme Court has yet to address is the particularity requirement of the Fourth Amendment. Yes, my friends. Particularity.

The Fourth Amendment requires that warrants particularly describe the thing to be searched for and items to be seized. The Riley decision didn’t go near that. And that’s going to be the next big issue. There are compelling reasons why that I won’t go into exhaustively, but I will focus on the most pressing. Cell phone searches.

When a cell phone is downloaded, with just about any forensic tool, the entire contents of the phone is downloaded and, the results are then handed over to the searching authority, such as the investigator. The investigator then has a report that contains 16GB of more of the browsing history, emails, text messages, incoming and outgoing calls, etc of the suspect. That is definitely not a particularized search. That is absolutely a general search as anticipated by the Bill of Rights.

A properly particularized search is one that limits the scope of a search to “evidence of narcotics transactions,” or “text messages between 555 555 1111 and 222 222 1111.” I’m not aware of a tool that does this from the beginning of the download. The tools I’ve been using in my practice download the entire phone contents and make it virtually impossible to minimize the intrusion into the private, personal communications of the owner of the phone.

There is no substantive difference between a wiretap and a cell phone download. The only difference is a technical one, which is that the communications are preserved. Because of that, the approach to these searches should be approached the same way as wiretap searches. There should be 1) a limitation as to the scope of the intrusion into the privacy of the subject by not allowing the plain view exception to the warrant requirement to apply, 2) there should be a time limit as to how long the government may take to search the phones, as there is in wiretaps, and; 3) there should be a minimization requirement in that a formal, written plan be submitted along with every warrant application.

Just because defendants do not hire private attorneys and just because every search of cell phones or personal computers is not vociferously objected to does not mean that they are not unconstitutionally overbroad. Due process and the Fourth Amendment are still concepts that should apply, despite their disuse.

More by | Monique Ferraro Monique Ferraro , Law.com Contributor
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