Should Police Be Able to Search Your Smartphone?

Would you be upset if police read your emails and text messages without your permission? What if they listened to your voicemails? The US Supreme Court is considering a case that goes to the core of every American's concept of privacy. The issue is whether police can search data on cellphones without obtaining a warrant at the time of an arrest. The law is clear that police can search arrested people for weapons and to prevent destruction of evidence. Police can also search a person's personal affects, (like wallets or address books), for evidence relating to the crime for which they were arrested. Police and prosecutors argue that this authority to search incident to arrest justifies detailed search of cell phones found during arrests.

Ten years ago this wasn't a big deal. People didn't keep their most private and sensitive information on their bodies. Now, with smartphones, many citizens keep their most private information on their person. A 2012 poll showed that 32 percent of Americans prefer texting to phone calls. As more communication continues to be done through texts and emails, police will have an unprecedented ability to monitor private conversations.

Courts have split on whether cellphones can be searched without a warrant after an arrest. On April 29, 2014, the US Supreme Court heard a case that involves a driver pulled over for expired tags. Police took his phone. A gang investigator went through the digital files and downloaded contacts, videos and photos. Prosecutors used that information to convict him of several felonies

During the hearing, Justice Anthony Kennedy stated that criminals "...are more dangerous, more sophisticated, more elusive with cellphones." Justice Samuel Alito noted that police are allowed to examine photos in a suspect's wallet at the time of an arrest so digital images in a phone should be no different.

Others on the Court seem to be leaning toward a different conclusion. Justice Sotomayor noted that where a billfold contains one to five photos, a cell phone contains thousands. Justice Kagan was troubled that a person could be arrested for a minor traffic offense, and the police could then search that person's cellphone. Police could "look at every single email including very intimate communications, medical data, and calendar information." Police could even access GPS information to learn everyplace the person had been.

Most people carry the syllabus to their lives on their cellphones. Prosecutors argue that collection of this information promotes security and officer safety. Prosecutors further assert that when people carry these devices they chose to have a lesser privacy right in the information on that device. They give up their expectation of privacy in all that information when they get arrested for any offense.

This appears to be ridiculous. Does someone have to keep a cellphone at home to have an expectation of privacy? The prosecution arguments don't follow Americans' feelings in 2014 concerning their private information. A Washington Post Poll reveals that 69 % of US citizens are "concerned" by government surveillance of their use of electronic devices.

The founding fathers created the Fourth Amendment because they hatred the way the British monarchy used "general warrants" to search whenever and wherever they wanted. Obviously the signers of the Declaration of Independence did not have iPhones. Nonetheless, the founders rejected the concept of governmental intrusion into Americans lives in the interest of security. Ben Franklin said, "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety" As former US Supreme Court Justice observed, "The makers of the Constitution: conferred, as against the government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men."

it is clear that Constitutional founders feared government intrusion into areas citizens mean to keep private. Warrantless cellphone searches enable the kinds of random intrusions and general digging that the Fourth Amendment was meant to block. There is real danger that police will use cell phone searches to go on blind treasure hunts to see what they find. Police could arrest a person for one crime and then look through his phone to see if maybe he has committed another.

Clearly there is logic in searching an arrested terrorist's cellphone. With other crimes that logic does not exist. When police arrest a person for being drunk in public, there is no rationale for detectives to rifle through that citizen's text messages and voicemails. When a person is pulled over for a DUI, there is no reason for law enforcement to examine the photographs and voicemails in the driver's device. Most troubling, if a person is acquitted of a crime, nothing prevents police from keeping collected cellphone data.

Mobile devices hold more information than home and office computers. Smartphones have our social media accounts, emails, text messages, and information about our health and finances. Phones also have specific information about the people with whom we communicate. No court would allow warrantless search of a home office even when a person is arrested at their home. Americans' right to privacy in their smartphones should be the same.

The average age of the Supreme Court Justices is 68. Can they possibly understand how much personal information Americans under 40 keep on Smartphones. During argument one of the justices asked "What if the person had on his person a compact disk?" That is scary. Hopefully the US Supreme Court can use 21st century common sense and grant the same protections our founders would have expected if they had smartphones. The most sensible conclusion is to realize that digital data on smartphones is different than physical items.

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