U.S. Supreme Court

Chemerinsky: Is it time to go high-tech on the Fourth Amendment?

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Erwin Chemerinsky.

On Jan. 17, the U.S. Supreme Court granted certiorari in two cases that hopefully will force it to bring the Fourth Amendment into the 21st century. In United States v. Wurie and California v. Riley the court will consider whether the police, after arresting an individual, may look at the contents of his or her cellphone. These cases may force the court to confront a question that it has so far ducked: What is the Fourth Amendment’s protection for informational privacy? That is, to what extent should people be able to keep information from the government until it has probable cause to obtain it?

The court has had the chance to deal with this question in recent years and has failed to do so. Most notably, in United States v. Jones, issued in 2012, the court considered whether it violated the Fourth Amendment for the police to place a GPS device on the undercarriage of a person’s car and then track its movements for 28 days without a valid warrant. The court unanimously concluded that this violated the Fourth Amendment, but neither the approach of Justice Antonin Scalia (writing for the majority), nor that of Justice Samuel A. Alito Jr. (writing for four justices concurring in the judgment), is likely to be useful in dealing with the issues of the 21st century.

Justice Scalia, writing for a five-person majority, relied on an English law decision from 1765, Entick v. Carrington, and concluded that under it a trespass is sufficient for a search. The court held that placing a GPS device on the car should be regarded as a trespass and doing so without a valid warrant violated the Fourth Amendment.

Justice Alito concurred in the judgment and said that it made no sense to decide what a search was in 2012 by looking at 18th century English law. He said that the focus should be on whether there is an invasion of the reasonable expectation of privacy, and concluded that tracking Jones’ movement for 28 days without a valid warrant infringed this.

But neither the approach of Justice Scalia nor Justice Alito is likely to be useful in dealing with the emerging issues of technology and the Fourth Amendment. Imagine that the movements of Jones’s car had been tracked not with a GPS device affixed to its undercarriage, but by satellite or cellular technology. I am reasonably confident that not even Justice Scalia can find useful 18th century precedents to decide when the use of satellite or cellular technology is a search within the meaning of the Fourth Amendment.

Nor, however, is the reasonable expectation of privacy likely to be useful. We have no expectation of privacy when we are driving on public roads. If the police wanted to have an undercover agent follow Jones everywhere he drove on public streets for a month, no warrant would be required.

The real issue, confronted by neither Justice Scalia nor Justice Alito, is the question of informational privacy: To what extent should a person have the right to keep secret where he or she is driving for a month until the police meet the warrant and probable cause requirement? That, of course, is exactly the question that would be raised if the police had tracked Jones’s movements with satellite or cellular technology.

The two cases on police searching the contents of cellphones, which will be argued in April, should force the court to face the issue of informational privacy. In Wurie, the question is whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.

Police in Boston saw Brima Wurie make an apparent drug sale out of his car. Police followed the buyer, who had bags of crack cocaine, and he identified Wurie as the seller. When the officers arrested Wurie, they confiscated his cellphone. It was an older “flip phone,” and the police looked at the call log on it. The information gained from the call log was used as evidence against Wurie and he was convicted. The 1st U.S. Circuit Court of Appeals reversed and held that Wurie’s suppression motion should have been granted with regard to the information gained from the search of his cellphone.

In Riley, the question is whether evidence admitted at Riley’s trial was obtained in a search of his cellphone that violated his Fourth Amendment rights. Riley was arrested and the police seized the cellphone—a smartphone—that he was carrying,

The police examined the contents of his cellphone and they found evidence identifying him as a gang member. The contents included a photo of him with a red car seen at the site of a shooting. Largely on the basis of what was gained from the search of his cellphone, he was convicted of attempted murder and assault with a deadly weapon.

In neither case did the police have probable cause for searching the cellphones. In both instances, the cellphones were searched simply because they were being carried by the person at the time of the arrest. In both cases, the information gained from the cellphones was crucial in convicting the defendants.

In deciding these cases, it is essential that the Supreme Court recognize the right of people to keep information from the government until the government has a warrant and probable cause. If there was probable cause for searching these phones, the police could have gotten a warrant to do so.

A great deal of personal information can be learned about someone by searching his or her smartphone, iPad or laptop. We carry everything from private medical information to financial information to diaries and so much more on our cellphones. Searching a cellphone is really no different from going through a person’s desk or drawers and looking through the contents. That always has required a warrant and probable cause; a cellphone should be treated no differently.

Unfortunately, the Supreme Court’s past history with technology does not offer confidence that it will quickly bring the Fourth Amendment into the 21st century. The court first dealt with electronic eavesdropping in 1928 in Olmstead v. United States, in which it held that wiretapping was not a search unless it involved a physical trespass on to a person’s property to plant the bug. It took almost four decades for the court to reverse this in 1967, and hold in Katz v. United States that wiretapping is inherently a search whenever there is an invasion of the reasonable expectation of privacy.

Emerging technology gives the police unprecedented ability to gather information about all of us. It is essential that the court do much better in this century in providing Fourth Amendment protection for our privacy. Wurie and Riley should be critical steps for the court to finally recognize a right to informational privacy under the Fourth Amendment.

Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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