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Thursday, April 24, 2014

Supreme Court Preview: They May Search My Smokes, but They’ll Never Search My Smartphone

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The Fourth Amendment protects a person's "papers" and "effects" from unreasonable searches. But what happens when those items-normally found in a file cabinet or closet-can all fit on a phone no bigger than a deck of cards?

And what happens when that phone is in someone's pocket when they get arrested by police? That's the question facing the U.S. Supreme Court in a pair of cases set to be argued on Tuesday, April 29-United States v. Wurie and Riley v. California.

The "search incident to arrest" was a stalwart exception to the Fourth Amendment's warrant requirement well before D.C. police officer Richard Jenks arrested and searched Willie Robinson and found heroin in a crumpled up cigarette pack-perhaps the most well-known example of the doctrine in action, United States v. Robinson 414 U.S. 218 (1973).

My, how times have changed. Trade the pack of cigarettes for an iPhone, loaded with pictures, videos, voice and text messages and other documents, and the ability to search an arrestee goes from a limited invasion to the key to a treasure trove of personal information.

So once again, the court is faced with the possibility that new technology will force them to reconsider how we think about the Fourth Amendment. (We're only two terms removed from United States v. Jones, involving the installation of a GPS tracking device on a suspect's car.)

Here to talk about the case and the issues facing the justices is Hugh Kaplan of BBNA's Criminal Law Reporter.


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