Police Officer With Cell PhoneIn the United States, citizens are guaranteed protection from unreasonable search and seizure by the Fourth Amendment to the Constitution. But as anyone who’s looked into Fourth Amendment jurisprudence will tell you, the most important word in that analysis is unreasonable. Courts around the country have developed a wide range of categories that they call “reasonable” searches.

One kind of “reasonable” search that doesn’t violate the Fourth Amendment is a search incident to lawful arrest. Basically, a cop can search anything that’s within the arrestee’s “immediate control,” in order to prevent the destruction of evidence. This standard comes from a famous Supreme Court case, United States v. Chadwick.

So what does this have to do with cellphones? Well, the California Supreme Court recently issued an opinion ruling that a cellphone’s text messages fall within the search incident exception to the Fourth Amendment. So, if you’re lawfully arrested and you have a phone in your pocket, a cop can take your phone, rifle through your text messages, and use whatever he or she finds in there against you.

This decision represents a significant departure from the original “search incident” exception, which has been held to apply to things like clothing or small containers. The privacy implications for searching the contents of someone’s cellphones are much more prominent than simply telling an arrestee to turn out his or her pockets. With the rise of the smart phone, searches of cell phones could reveal not only text messages, but emails, private documents, and perhaps even financial information.

Fourth Amendment jurisprudence has regrettably strayed away from the privacy concerns that once underscored nearly every case considering the lawfulness of searches. To explain away the distinction between cell phones and other items, the California Supreme Court reasons that “[n]othing in these decisions even hints that whether a warrant is necessary for a search of an item properly seized from an arrestee’s person incident to a lawful custodial arrest depends in any way on the character of the seized item.”

But the California court ignores the historical importance placed on “private papers,” which were held in 1886 to be fully protected from searches by the Fourth Amendment. Of course, the special protections for private papers have been eroded as of late, but the invasion of a person’s private thoughts should still be given heightened attention in a Fourth Amendment analysis.

Regardless of the wisdom of the California Supreme Court’s decision, however, it is now the law in California. The plaintiff may still appeal to the Supreme Court, but the odds don’t look good (in 2009, the Supreme Court granted 1.1% of petitions for review.) For now, the lesson for the masses is clear: password protect your cellphone.

Kevin Lumpkin

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