our view

Our View: Want to search a smartphone? Get a warrant

April 29, 2014 

We’re not certain that most members of the Supreme Court understand the amazing technology contained in the “phones” most of us carry in our pockets. After all, in recent questioning some were uncertain how to use email.

We hope they realize that today’s smartphones aren’t really phones; they’re small computers with a phone (and a camera, web browser and myriad apps) thrown in. Most people under 35 would rather lose their wallets than their phones. Our phones are our link to the world, containing our appointments, our banking records, our family photos. Some people even keep things on their phones they’d rather others not know about – which might be embarrassing but completely legal.

But are phones private?

The Supreme Court heard two cases Tuesday on whether police need warrants to search the cellphones of people they arrest. A decision should be announced this summer.

The Fourth Amendment’s ban on unreasonable searches and seizures goes back to our founding fathers. Yet, the courts long have allowed police to search people they arrest without a warrant, to protect officers from hidden weapons and to prevent evidence from being destroyed. That seems reasonable until you consider that today’s phones carry all kinds of records and other information that government has not been allowed to search without a warrant.

The stakes are high. About 12 million people are arrested each year, many on minor offenses. The question is whether or not law enforcement should be able to go on fishing expeditions through their phones, searching for more serious crimes?

Law enforcement says phones need to be searched immediately because they can be wiped clean by a remote signal. Privacy groups say simple devices can block those remote signals. Based on justices’ questions and comments during oral arguments, some observers believe the justices might be seeking middle ground.

One of the two cases heard Tuesday comes from California. In 2009, a San Diego man was pulled over for having expired car registration. A search of the car uncovered guns and other items suggesting gang membership. Then police looked at his smartphone and found texts with gang symbols. A deeper search led to information that linked the man to a shooting; he later was convicted of attempted murder and sentenced to 15 years to life.

The California Court of Appeal said neither phone search required a warrant. In her brief to the U.S. Supreme Court, Attorney General Kamala Harris argues that contacts, videos and photos are no “different in kind from wallets, address books, personal papers” or other items police have been allowed to search.

Not in kind, perhaps, but the sheer volume of information on smartphones is very different – and our laws need to recognize the difference.

Police should be able to take a phone, but they should get a warrant to search it.

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