Those words were spoken by US Supreme Court Justice Elena Kagan (former dean of Harvard Law School) during oral arguments on a case currently before the Court that will answer the question whether police officers need a search warrant to search a cellphone carried by an arrested person. The case is Riley v. California and it’s an attempt by government to broaden the scope of searches without the need for a warrant. There is an exception to the warrant requirement that allows officers to search a person “incident to arrest”, and it makes sense in order to protect officer safety (looking for guns or weapons) or to preserve evidence that could be easily disposed of otherwise (e.g., drugs). But a cellphone? It doesn’t seem to present any threat to officers and what danger is there that evidence exists on the phone, which cannot be obtained after the phone is seized and a search warrant obtained? This seems like a no-brainer to me.
But the government continues to peel away every last vestige of privacy that we have in order to maintain control and this is just the latest example. Even Justice Scalia, the ranking Conservative on the bench, stated “If police should arrest someone for driving without a seatbelt, it seems absurd that they should be able to search that person’s iPhone”.
Cell phones play a uniquely powerful role in modern criminal prosecutions. Prosecutors have learned that they are basically radios constantly transmitting information to local cell towers. In a murder case I tried, the government issued search warrants for every cell tower near the shooting and was able to get records of every phone that was in the vicinity. By doing this, they were able not only to place my client’s phone at the scene, they were able to demonstrate to the jury that the phone was constantly in use texting someone else except for a 7 minute period during which the shooting occurred. Powerful evidence? It would have been, except that the defense cell phone expert testified that the government manipulated the evidence to show the two time periods coinciding when in fact they did not overlap. The State Patrol officer who altered the charts presented to the jury at the prosecutor’s request admitted this during cross examination, and held her head down in shame.
The point is, cell phones play a unique role in our lives not only because of the data on them – which, as Justic Kagan points out, is comprehensively biographical – but also because of their ability to present a complete picture of our travel, our conversations, our stop and go’s. The Framers of our Constitution could not have envisions cell phones and their ubiquity, and the best they could do for future generations was prohibit “unreasonable searches” of our “persons, papers and effects”.
Police need to get a warrant.