IF THE framers of the U.S. Constitution had the power to communicate with the U.S. Supreme Court, we know what they'd be saying today: Can you hear me now?
The Verizon tagline seems apt at a moment when the nation's top court is considering whether police can confiscate and search the cellphone of anyone who's been arrested for any reason, without a warrant.
In what civil-rights advocates call "the most important privacy cases in years," the nation's top court is hearing two cases today that will determine whether these warrantless searches violate the constitution's Fourth Amendment.
Simply put, if you get picked up for any offense - say, making an illegal left turn - do arresting authorities then have the right to search your cellphone for evidence of other crimes without probable cause? And then arrest you on unrelated charges, based in part on that information?
That's what happened to the key players in the cases before the court. Lower courts have been split almost evenly on the issue.
David Leon Riley, the defendant in Riley v. California, was stopped for having expired tags on his car. Police found firearms in his car and then seized his phone, searching through his messages, contacts, videos, photographs, calendars and everything else it contained. Based in part on what they found, Riley was charged and convicted on charges stemming from an unrelated shooting that occurred several weeks earlier. A somewhat similar scenario in United States v. Wurie, involving a flip phone, resulted in Brima Wurie being convicted for selling drugs.
The Fourth Amendment prohibits government from conducting groundless and arbitrary searches of an individual's "papers and effects." The fact that "papers and effects" are now electronic doesn't strip us of that protection.
The fact that Riley and Wurie may be unsympathetic doesn't change the danger of the government intrusion, because most of the nation's 12 million arrests each year are for alleged misdemeanors and most arrested individuals are never convicted of any crime.
Yes, the top court has previously ruled that police can search personal effects after an arrest - such as wallets, pagers, address books, etc. But electronic devices are another category entirely, given the rich trove of personal data they contain.
Not to mention, as an appellate court ruled in the Wurie case before the court, that cellphone searches are "categorically unlawful," given the "government's failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence," the two circumstances that justify a warrantless search.
In any case, police already have the right to search your cellphone. All they have to do is get a warrant. That's not such an onerous condition to gain access to what amounts to our digital diaries.