The 4th Amendment is Becoming Even More Complicated

The 4th Amendment to the Constitution protects all people in the United States against unreasonable searches and seizures from the government. This has generally been easy to apply to your home, your car, and to your person. You know they need a warrant to search these things usually. With new technology becoming ever present in everyone's day to day life the questions as to privacy regarding your cell phone has become a hit topic in the 4th Amendment debates.

The Supreme Court of the United States recently heard arguments as to the privacy a person should be afforded when it comes to their SmartPhone. Today we keep everything on our phones including pictures, emails, calendar appointments, private social media messages, text messages, voicemail, banking information, audio recordings, records of where we have been or where we plan on going, access to our home computer files, cloud computing storage, and even more for some. Where will the Supreme Court draw the line and consider this information private?

If you feel that your 4th (fourth) Amendment rights have been violated and you were subject to a search that the government or police did not have probable cause for, please contact The Law Offices of Thomas A. Smith as soon as possible. This includes a search of your home, your person, your car, or any other search the government subjected you to in trying to prosecute you for the commission of a crime in the Charleston, South Carolina (SC) area. The following article from the SCOTUSBlog explains the arguments from both sides. 

 New devices allow police agencies to simply just download everything on your phone so that they can go through it later in certain states. While this is not common in South Carolina just yet, will a warrant be needed?

New devices allow police agencies to simply just download everything on your phone so that they can go through it later in certain states. While this is not common in South Carolina just yet, will a warrant be needed?


Argument analysis: Limiting a search? Sure, but how?

Trying to imagine all of the things that an individual might keep stored on a cellphone, and trying to decide how much privacy — if any — each item ought to have, the Supreme Court on Tuesday reached for a new digital-age constitutional formula for police searches of those ubiquitous devices, but found that maddeningly elusive.

Two hours of argument, one each on two different generations of cellphone technology, left the strong impression that the Justices would stay away from flat rules: either that police can always search any such device that they take from an arrested person, or that they could not search its contents at all.

But, as Justice Anthony M. Kennedy said in the first argument, in Riley v. California, what the Court was seeking was “some standard on where we draw the line.”

But, as the discussion went on, it seemed that there were two lines that would have to be drawn:  one, to define the kind of cellphone contents that were so private that they would be insulated from search; and, second, to define the limits of a search warrant so that the police stayed away from what was private.

The Justices seemed well aware that, even if they somehow were able to craft some Fourth Amendment limitations on searching cellphones, they still would have real difficulty in implementing those limits by telling a magistrate how to write a search warrant to guide the police.  “A warrant for what?” Justices Ruth Bader Ginsburg and Antonin Scalia both asked.

“What would police have to show [to get a warrant]?” Ginsburg added.

Although there was a lot of talk about how to figure out what most cellphone users believed should be private among the contents on their devices, there did seem to be a rough consensus that they do believe that, to some hard-to-define degree.

Several Justices, including Elena Kagan and Sonia Sotomayor, suggested that cellphones now contain data “about one’s whole life,” including its most intimate details.  Chief Justice John G. Roberts, Jr., however, wondered how private some contents would be if it were passed out to the public via a social network like Facebook.

Stanford law professor Jeffrey L. Fisher, arguing in the Riley case, appeared to have considerable success with his argument that smartphones and their “digital information” were somehow different from other objects that police might take from an arrestee.  The problem, though, was how the Justices decide what is different about them, constitutionally.

Even so, Fisher’s argument created an atmosphere in which it was harder for his two government opponents — California Solicitor General Edward G. DuMont and Deputy U.S. Solicitor General Michael R. Dreeben — to press their argument that the Court should apply a categorical rule that police do not need a warrant to inspect a cellphone seized from a suspect.

Dumont tried to stick with that argument in the face of skepticism from the bench, including a complaint by Justices Ginsburg and Elena Kagan that his approach would allow a wholesale search of anyone arrested for any crime, even if it were no more serious than a traffic violation.

Dreeben, however, sensed the Court’s skepticism, and was ready with some “limiting principles” that might leave police with general authority to search contents, if the crime were a serious one and if there were good reason to believe that searching a particular “app” on a cellphone would likely be evidence of the crime for which that individual had been taken to the police station.

Deputy Solicitor General Michael R. Dreeben (Art Lien)

Fisher, trying to steer the Court away from leaving too much to the police to judge, said there were real problems in having a constitutional regime that proceeded “app by app” to define privacy.  Although he would prefer a warrant requirement as a general rule, he did suggest that there might be “exigent circumstances” that would enable police to inspect a cellphone without one.  But the Court had just as much difficulty defining such circumstances as it did answering the questions about what is private and what a warrant would say.

Although it did not come out really plainly in the argument, the Court did seem to sense that there were greater risks to cellphone privacy in the case of a modern smartphone — the kind of device involved in Riley — and a somewhat dated model, the “flip phone,” which is the device at issue in the second case Tuesday, United States v Wurie.

In fact, in a potentially significant exchange in the Riley case, Justice Kennedy asked Fisher whether the Court could rule against the privacy claim in the Wurie case and still find a way for Riley to win in his case.  That presumably was based upon the possibly vast difference in the capacity of a smartphone and a flip phone.

In the Wurie case, the police obtained a lot less information about the suspect in that case from his smartphone than the officers did in the Riley case.  And, in Tuesday’s second argument, the government lawyer, Dreeben, appearing again, seemed to have had to exert little effort to build support on the bench for his argument, while his opponent, Judith H. Mizner, an assistant federal public defender in Boston, delivered a rather meandering argument that drew little notable support from the bench.

Lyle Denniston, Argument analysis: Limiting a search? Sure, but how?SCOTUSblog (Apr. 29, 2014, 2:47 PM),


 If you or your loved one has been charged with a crime involving a search by the government or police, please contact The Law Offices of Thomas A. Smith for a free criminal defense consultation immediately. These matters are serious and should be handled by a licensed attorney immediately. Call (843) 212-3205 anytime.

     If you need help getting your record expunged, or help in regards to any legal matter, I can help with that as well. I handle criminal defense cases including Drug Related Crimes Defense in the extended Charleston, SC Lowcountry region which includes: Mt. Pleasant, James Island, Folly Beach, Johns Island, Daniel Island, West Ashley, Summerville, North Charleston, Hanahan, Goose Creek, Sullivan’s Island, Isle of Palms, Seabrook Island, Kiawah Island, Edisto Island, Edisto Beach, Moncks Corner, Dorchester, Ladson, Wadmalaw Island, McClellanville, Awendaw, Huger, Ridgeville, Jacksonboro, Ravenel, Hollywood, Pinopolis, Adams Run & Cottageville. Includes Charleston County, Berkeley County, Dorchester County, and Colleton County.