David Kravets, writing in ars technica had one concerning a couple of cases coming before the Supreme Court dealing with the legitimacy of warrantless searches of cell phones and other digital devices pursuant to an otherwise legitimate arrest.
President Barack Obama’s administration and prosecutors from states across the country have lobbied for police officers to be able to search arrestees’ gadgets—at or about the time of arrest—without a warrant. Such action, however, demands an examination of the Fourth Amendment’s protection against “unreasonable searches and seizures.” If nine out of 10 American adults own mobile phones and the devices have advanced to become virtual extensions of our personal and private lives, at what point does law enforcement’s access to their call logs, photos, and cloud-hosted data become “unreasonable” invasions of constitutionally protected privacy?
Indeed. It’s also necessary to keep such ancillary searches in context. The courts long have held that when a man is arrested, the police can pat him down, even do cursory inspections of his car if that’s where he was arrested—look in the trunk, for instance—to be sure he has no weapons that would enable him to harm the arresting officer(s) or devices that would facilitate him attempting to escape from them.
It’s clear, though, or it should be clear, that the electronic contents of a cell phone or of a laptop or…can present no danger of either of those possibilities.
It’s also apparent that the two characters in the cases before the Supreme Court are unsavory at best. It’s also clear that the cursory search of the car David Riley was driving at the time of his arrest was both legitimate and fruitful—the police found weapons secreted in it. However, the persons’ unsavoriness is not an excuse for proceeding with the illegitimate, in my view, searches of their cell phones—there were no dangers to be found in those electrons; a search warrant should have been obtained before the searches conducted.
If such warrantless searches are allowed, what’s to stop government from expanding the scope to the less unsavory among us? To the entirely savory, other than those of whom government disapproves (IRS, anyone)?
There wasn’t even any danger of evidence contained in the phones being destroyed before the warrants could be issued; the cells were safely in police custody.
In one of the two cases, Solicitor General Donald Verrilli Jr made explicit a part of the Federal government’s rationale for such warrantless searches:
[J]ustices “should not deprive officers of an investigative tool that is increasingly important for preserving evidence of serious crimes based on purely imaginary fears that police officers will invoke their authority to review drug dealers’…’appointments with marital counselors’ or armed robbers’ ‘apps to help smokers quit.'” (Verrilli was citing examples lodged with the court by the Center for Democracy & Technology.)
Yet in making this argument, Verrilli has shown his utter lack of understanding of our social compact. Our Declaration of Independence and our Constitution are designed to carry out exactly that prior restraint, because ultimately government cannot be trusted to restrain itself. This is what John Adams was talking about when he wrote to his wife
Liberty, once lost, is lost forever.