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Is Your Cell Phone Protected by the Constitution?

Fifty years after the Katz decision, the Supreme Court revisits the law on phone searches.
Photo: Extreme Photographer/iStock


If mobile technology reinvented the relationship you have with your phone, a case argued last month in the U.S. Supreme Court has the potential to transform the relationship the police have with it as well. Timothy Ivory Carpenter and his brother, Timothy Michael Sanders, were charged with committing a series of armed robberies in Michigan and Ohio from December 2010 to March 2011. Prosecutors presented evidence during the subsequent trial that when the crimes were perpetrated, the defendants were in the same location at the same time of the occurrences—or at least, their cell phones were.
Charles Katz was convicted of violating federal law by using a public payphone to transmit illegal gambling information across state lines. The conviction was secured, in part, by conversations recorded with a wiretap placed by FBI agents on the outside of a phone booth that they had observed being used by the subject of their investigation.

By wiretapping the glass enclosure, a space the public (and police) had lawful access to, the agents hadn’t violated protection afforded the defendant under the Fourth Amendment, the lower courts ruled. The courts relied on Supreme Court precedent by taking into account where law enforcement was conducting their surveillance instead of what was being surveilled.
Three years ago, the Court again cited Katz to recognize the voluminous nature of mobile technology and the frightening prospect of a limitless intrusion into personal lives by allowing law enforcement access without warrants. David Lee Riley’s phone was searched by police during a lawful arrest; incriminating pictures were discovered that helped convict him of a drive-by shooting. The Court overturned Riley’s conviction unanimously. “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person,” Chief Justice John Roberts wrote in Riley v. California. “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. . . . Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”
The conflicting outcomes in these cases point our current Supreme Court in alternate directions for what they may rule in the Carpenter case. Will they decide that location tracking is the equivalent of secondary material, and not subject to a warrant requirement, as in Smith?  Or will they determine this technology to be the equivalent of a police officer in the pocket of every citizen, and therefore content, subject to Katz? Another possibility is that the court will override the third-party doctrine by finding non-content material that passes through an uninvolved party—much more pervasive today, with technology like web browsing and cell-site-location information, than it was in 1979—to be subject to warrant constraints in all but emergency situations.

No matter which side wins this appeal, the forthcoming decision will no doubt advance the way that the Bill of Rights covers evolving communications technology. We just have to wait for the justices to tell us how.

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