Your Smartphone is Not Your Purse

Jack is on vacation this week and asked his partner Steve Goodin to guest blog on a Supreme Court case where 21st Century technology meets 18th century constitutional principles.  The results may or may not surprise you.

Or your “man purse.”  Or your briefcase/portfolio/whatever else you carry at your side during your daily activities.

Instead, your smartphone is a repository of intimate personal information:  Photos, emails, web histories, financial information . . . and, if you’re familiar with the terms “sext,” “Grinder” or “Eharmony.com,” the level of intimacy can be, well, staggering.

Despite the blazingly obvious nature of this proposition, American courts have spent years struggling with imperfect analogies that equate smartphones with purses.  The argument has always been that an arresting officer should be able to look through a smartphone in the same manner that he can look through a purse – regardless of the fact that a smartphone cannot be used to conceal a weapon or illegal contraband.

But on Tuesday, the U.S. Supreme Court belatedly recognized this common sense distinction.  In Riley v. California, all nine justices finally embraced the obvious:  Smartphones play a unique role in our private lives, and thus merit special legal protection. 

The special place smartphones hold in our culture has bedeviled law enforcement for more than a decade.  When a person is arrested, police officers are permitted to seize and search any objects in the suspect’s possession.  These searches are nominally designed to ensure officer safety, and with good reason: Countless illegal weapons are seized during such searches.  But those pre-arrest searches also result in the seizure of large amounts of drug-related contraband. Such searches are an essential weapon in the War on Drugs, and one of the primary means of proving illegal drug possession.

These days, almost every arrestee has a smartphone on his or her person.  There is no question that the phone itself can be legally seized, but our courts have disagreed as to whether officers should be allowed to also search the contents of the seized devices – the often-revealing stored lists of contacts, recent calls, texts, photographs, etc.  This information can provide a trove of damning evidence – especially in the context of a drug trafficking investigation.

The Supreme Court’s decision erased any ambiguity regarding the propriety of such searches.  That is, the Court finally acknowledged that searching a cellphone is dramatically different from searching a purse or briefcase.

The primary difference is self-evident: A smartphone cannot be used to conceal a gun or knife.  More importantly, the uniquely personal information contained in a smartphone carries with it an enhanced expectation of privacy.  Consequently, the Court ruled that a police officer now must obtain a warrant from a judge before searching the contents of a cellular device.

This decision is in keeping with long-standing precedent that has required warrants for searching separately locked containers encountered during an otherwise lawful search.  More importantly, it responds to the gut-check unfairness of the practice.  Imagine being arrested for a minor traffic offense and standing by, helpless and in handcuffs, as a police officer goes through your iPhone.  It just feels wrong, doesn’t it? Such scenarios undoubtedly contributed to the unanimous nature of the ruling.

That said, if an officer has probable cause to believe that a smartphone will contain evidence of criminal wrongdoing, he can still search its contents. He just has to obtain a warrant first.  And the officer can always request that the suspect consent to the search; if granted, consent obviates the warrant requirement.

While this ruling will undoubtedly cause an increased and regrettable burden on law enforcement, it nonetheless constitutes an encouraging (and somewhat rare) acknowledgement by the Court of the basic circumstances of modern life.  Smartphones present no ready analogies in the post-colonial era; it’s impossible to say precisely what our Founding Fathers would have made of them. Given their preoccupation with British soldiers lawlessly searching homes, this ruling presents a very reasonable best guess.