A gasp for the Fourth Amendment

The Fourth Amendment to the Constitution requires government searches to be based on probable cause of a crime and to be authorized by a judge via a warrant. In a recent case, Riley v. California, 573 U.S. (2014), the Supreme Court indicated that the Fourth Amendment is still alive, albeit on life support. Even in a badly divided court, the California’s and Obama administration’s arguments were so outrageous that all nine justices joined together to smack them down.

Two precedents were relevant here. In Chimel v. California, 395 U.S. 752 (1969), the police arrested a person in his home and then, without a warrant, searched his house and garage. The Court threw out the results, saying that it was unconstitutional because it did not protect officer safety or preserve evidence. Later in United States v. Robinson, 414 U.S. 218 (1973), after arresting Robinson, the government searched his pack of cigarettes and found heroin capsules. The Court allowed the search. It held that the Constitution permitted the police to search personal property on or near people who are arrested. In general, it held that the constitutionality of a search of a class of objects depends on the balance between Americans’ interest in privacy and the government’s interest in protecting police safety and preventing evidence from being destroyed. The holding in Robinson is mistaken as the Court could have allowed such items to be removed and then required a warrant to search them.

In the recent case, Riley, California and the Obama administration wanted to allow the police, after arresting someone, to search the entire contents of his cell phone without bothering to get a warrant. The state argued that searching through a cell phone was no different than searching through Robinson’s pack of cigarettes. It also argued that cell-phone searches are necessary to protect officers from harm and to prevent evidence from being destroyed. California and the Obama administration claimed that the Constitution permitted the police, after making an arrest for a minor offense (for example, driving without a seatbelt or jaywalking), to search the arrestee’s cell phone. Such a search could include looking at his emails, texts, photographs, bank records, medical data, calendar, history of internet searches, and travels (via GPS data). As Michelle Alexander points out in The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012), nearly everyone violates some law during the day. As a result, this view guts the Fourth Amendment.

The Court ruled that such a search did not fit under the exceptions and, in any case, the police could physically search the phone (for example to see if there is a razor blade hidden between the phone and its case) and in an emergency situation could search it without a warrant.

The state and federal government argued that searching the cell phone was necessary to protect the police because the arrestees’ friends could use the cell to head to the crime scene and ambush the police. The Court dismissed this ridiculous claim as neither the state nor federal government could come up with a single incident where this happened or any other evidence suggesting that the failure to search the phone’s content endangered the police. In any case, if this were a real concern, then the emergency exception would allow such a search.

The state and federal government argued that without a search the content could be remotely wiped out. The Court noted that, again, cases of this were very rare (limited to two anecdotes) and, in any case, easily prevented by turning the phone off, removing its battery, or in any case just putting it in a cheap bag made of aluminum foil (Faraday bag).

The Court noted that there are important privacy interests here. First, the amount of data on a smart phone is incredible and could be used to track much of a person’s life. If the government has an individual’s pictures (with dates and locations), movements (via phone GPS), records of his calls, texts, and emails, medical and bank records, and history of internet searches, then it knows a hell of a lot about his life. The Court pointed out that a search of someone’s cell phone might provide more information about him than a search of his house. Second, such cell phones are widespread. One poll, the Court cited, found that nearly 75 percent of smart phone users report having the phone near them almost all the time. These searches could easily become ubiquitous.

This is not the first time the Obama administration has shown it hates the right to privacy. The Court itself has only limited respect for it and, sadly, it is the conservative wing that is at fault here. In Maryland v. King, 569 U.S. (2013), by 5 to 4, the Supreme Court allowed the police to take the arrestee’s DNA via cheek swab without a warrant, thereby allowing the state to add many more people to a national DNA database. This invasion can be done even for minor crimes and mistaken arrests. As Justice Scalia in Maryland pointed out, this decision would have outraged the nation’s founders, men such as James Madison and Thomas Jefferson.

In United States v. Jones, 565 U.S. (2012), the Obama administration argued that without bothering to get a warrant, it could put GPS tracking devices on someone’s vehicle to monitor its movement because, get this, it was not a search under the Fourth Amendment. All nine justices slapped down this monstrous idea.

In Florence v. Board of Chosen Freeholders, 566 U.S. (2011), by a 5-4 vote, the court allowed the police to strip-search arrestees before admitting them to jail and even if there is no reason, repeat no reason, to suspect they are carrying contraband. This despite the fact, as Justice Breyer pointed out, in one New York study, of 23,000 people strip-searched only one had contraband. A similar study in California found only three out of 75,000 had contraband. In any case, Breyer noted, such searches could have been done via pat-down or x-ray.

The National Security Agency’s policy of searching of cell phone calls, texts, and emails, including pen registers (numbers dialed and addresses to which messages were sent) and content, is well-known and bitterly defended by the Obama administration.

Having just watched the July Fourth celebrations, I wonder what celebrants think of a government that thinks it is too much effort to get a warrant to search your phone, DNA, and anus (even for the most piddling or obviously mistaken arrest), put GPS trackers on your car, and get your cell phone and email pen registers and content. I know what Madison and Jefferson would have thought.

Stephen Kershnar is a philosophy professor at the State University of New York at Fredonia. Send comments to editorial@observertoday.com