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PD Editorial: Phones and the Fourth Amendment

  • KRT BUSINESS STORY SLUGGED: CPT-PHONES-CRIMES KRT PHOTOGRAPH BY PETER MONSEES/THE RECORD (June 1) A text-messaging system is being tried out by German police and could come to the United States in a few years. (cdm) 2004

California presented two provocative Fourth Amendment cases to the U.S. Supreme Court this week.

In one, the court agreed to decide whether police need a warrant to search the cellphones of people they arrest.

The second case, which grew out of a marijuana arrest near Fort Bragg, will determine whether an anonymous 911 call justifies a traffic stop.

These cases place important constitutional questions in the context of ordinary daily activities that rarely cross the boundaries of legal behavior. Yet there are important distinctions that point to differing conclusions -#8212; a warrant requirement for cellphone searches but wider latitude for police to stop motorists.

In the cellphone case, a California appellate panel relied on a U.S. Supreme Court ruling authorizing police to search the possessions carried by a person who is arrested. The Court of Appeal applied that to the contents of a cellphone.

But cellphones were the stuff of James Bond movies when the Supreme Court ruled in 1973.

In 2014, the ability to place a call is practically an ancillary function of smartphones, which store vast troves of personal information.

For police in the 1970s to get at "papers and effects," to use the Framers words, they almost certainly would have needed to enter someone's home or, perhaps, their bank. And, for that, a warrant was required. The same standard should apply to the contents of a cellphone.

A federal appeals court in Boston reached that conclusion, and its ruling also will be reviewed by the Supreme Court this spring.

On Tuesday, the justices listened to oral arguments in the Mendocino County case.

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