Your Smartphone, Your Privacy . . . When Authorities Step on the 4th Amendment and Invade Your Personal Life

You probably don’t know it. Two important cases are scheduled for argument before the U.S. Supreme Court at the end of April:

1. United States of America v. Brima Wurie
2. David Leon Riley v. State of California

Okay. But how does that news affect me?

The correct answer is:

A lot – if you have a smartphone and you care about your Constitutional rights of privacy.


We know modern cell phone technology provides access to, and the storage of, extraordinary amounts of personal data. That’s a given. Your smartphone is literally a mini-computer, a computer you carry with you wherever you go.

Your smartphone is your private place. It may have many, many GBs of sensitive, intimate, or privileged information. It might contain business or bank information, medical or legal communications, and much more. If the worst-case scenario should happen . . . you ever misplace or lose it . . . that’s a serious, major concern.

Now consider this: What if, following a lawful arrest, law enforcement authorities search your cell phone, your private place, without using a proper warrant? Just think about it: The warrantless search of your cell phone would provide access to all your personal information and private files – perhaps stored both on your smartphone and on remote servers accessible from it.

This would be a huge invasion of your privacy.

It would also be unnecessary, and unreasonable, under the U.S. Constitution’s 4th Amendment. The 4th Amendment is your shield against intrusion by any government authority.

But it’s already happening. In the important cases noted above, law enforcement authorities searched the defendants’ cell phones without a warrant. And are trying to justify these actions as being proper and necessary.

The bottom-line argument before the U.S. Supreme Court is this:

Does the 4th Amendment permit law enforcement to search the contents of a person’s confiscated cell phone (seized from that person after a lawful arrest) without first obtaining a search warrant? Does law enforcement have the right to decided when it will force its way into your personal world without proper judicial process?

The short answer is: No. A longer answer is this:

The 4th Amendment requires law enforcement authorities obtain a proper warrant before conducting any cell phone search. No special circumstances justify an exception to this. In other words, a warrantless search of a cell phone confiscated during a lawful arrest runs contrary to the words and intent of the 4th Amendment.

This warrantless search is outside the correct judicial process (as defined by the 4th Amendment). Correct judicial process requires prior approval (a warrant) by a judge or magistrate.

Law enforcement authorities argue that while they wait for a warrant, a defendant could easily delete potential evidence from his or her smartphone– an argument which is a feeble reach, since the phone has already been physically confiscated.

But their argument goes on: Such deletions could be done remotely. The answer to that is simple: Current technology – such as inexpensive bags which block remote signals – is already readily available and can be routinely used at the moment of confiscation.

As smartphone technology leaps forward, law enforcement authorities do struggle to keep pace every day. Law enforcement does need technological tools equal to the task. No one argues with that. But that technological gap does not make it permissible for law enforcement to invade your privacy without a warrant.

And speaking of technology, what if you are on the cutting edge? You may have the latest smartphone – one that’s encrypted or with all the bells and whistles of password protection. Probably it has cloud access and GPS. Maybe it has a “kill switch” feature. Does this mean you may get “profiled”? Are you are then going to be “watched”?

For criminal defense attorneys across the country, these current U.S. Supreme Court cases – and questions – reveal a potentially troubling issue.
If the Supreme Court decides in favor of law enforcements’ attempts to justify its methods and ensure its success – at the expense of your Constitutionally-guaranteed right to privacy – this could be a step down a dark road to greater government control and a loss of personal freedom.
This is why these two cases before the Supreme Court are so important. The 4th Amendment – and your privacy – could hang in the balance.

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