Fourth Amendment Fight: Supreme Court Ruling to Determine if our Smartphones Really are Private

| Analysis

The U.S. Supreme Court has decided to rule on whether or not police need a warrant before searching a suspect's cellphone after arrest. Currently, there are two lower court rulings on the issue and they're contradictory. If the Court rules in line with Massachussetts, what's on our smartphones is our own business. Ruling in line with California, however, means police can search through all the contents of our iPhones and other smartphones as much as they want after an arrest.

Supreme Court to rule on smartphone privacySupreme Court to rule on smartphone privacy

At question is the Fourth Amendment to the U.S. Constitution and its protection from unreasonable search and seizure, and just how that applies to cellphones in the possession of someone when they're placed under arrest. Courts have rules that police can search a suspect's property after arrest to make sure they don't have any weapons or illegal drugs, and those searches can include looking in personal items like cigarette packs, glasses cases, and even address books.

In California, the courts ruled that searching the contents of a suspect's smartphone without a warrant is perfectly acceptable. In that case, a man was stopped for expired license plates and then his car was searched as part of a standard impounding procedure. During the search, police found his smartphone and searched its contents, too, where they found photos of the suspect flashing gang signs and other data that suggested he may have gang ties.

The contents of the suspect's smartphone was used to tie him to a gang-related shooting that ultimately led to a minimum of 15 years in prison and potentially a life sentence. The California State Supreme Court ruled the warrantless search was reasonable because the smartphone was taken from the suspect during his arrest. The court felt that the type of item searched was irrelevant, as was the storage capacity of the smartphone.

In Massachusetts, however, the courts ruled that a warrantless search of a smartphone isn't allowed under the Fourth Amendment. In that case, police used photos and a phone number on a suspect's smartphone to find out where he lives, and then once they were at his home discovered drugs and a gun. That evidence was then used against the suspect at trial.

Based on the California ruling that made for a legit case, but Massachusetts didn't see it that way. Instead, the court ruled that smartphones are pocket-size computers and are subject to the same privacy protections as laptop and desktop computers. Translation: to search a smartphone you need either a warrant or the owner's consent.

Smartphones tend to be more like intimate collections of information about our personal lives and not just lists of phone numbers -- the types of data that was typically tucked away in the privacy of our homes instead of in our pockets and always available. Courts haven't had any issues agreeing that what's in our homes is generally protected by the Fourth Amendment, but haven't been able to come to consensus about how to handle that same information when packed into a device small enough to fit in a pocket and go with us everywhere.

Assuming the Supreme Court agrees that our smartphones fall under the scope of the Fourth Amendment it shouldn't matter if a suspect uses a passcode or not; the device will be protected from searches without warrants or consent. If police wanted to search your home, for example, they can't simply walk in even if the door is unlocked. Instead, they need probable cause or consent to conduct a search.

In California, the courts have focused more on the storage capacity of our portable devices and decided that it's not practical for officers in the field to make judgement calls on whether or not they can conduct a search because they'd need to know what the threshold is for a warrantless search, and they'd need to determine how much storage space the suspect's smartphone includes. In the case of an iPhone, that's easier said than done since Apple doesn't stamp the storage capacity on the outside of the device.

Ruling smartphones fall outside of Fourth Amendment protection means they could be subject to search without cause whenever law enforcement stops someone. If the smartphone is locked with a passcode and the suspect refuses to either unlock the device, or give police their passcode, they could potentially face charges for failing to cooperate with law enforcement officials. Based on the very personal nature of our smartphone contents, that's akin to the court saying police could search our homes when we're detained without probable cause, regardless of whether or not our front doors are locked.

Considering the number of people using smartphones in the United States, the Supreme Court's decision will be a landmark ruling for privacy and Fourth Amendment protection. Law enforcement can't search the contents of our computers after arrest without a warrant, and they shouldn't be able to do so with our smartphones.

California has its own ideas about smartphone privacy. Hopefully the Supreme Court will prefer Massachusetts interpretation instead.

[Some image elements courtesy Shutterstock]

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John Martellaro

it’s not practical for officers in the field to make judgement calls on whether or not they can conduct a search because they’d need to know what the threshold is for a warrantless search, and they’d need to determine how much storage space the suspect’s smartphone includes.

That’s like saying law enforcement officials can’t determine the square footage of a house by looking at it, so they might as well barge in without a warrant.


I am wondering what, exactly, the capacity has to do with anything? (Except, of course, as one more excuse for big government to treat our constitutional protections as an “only when we feel like it” document.) It does not matter if it is 60GB or 2KB, it is personal information which is automatically protected under the constitution. One purpose for allowing search during arrest is to protect the arresting officer(s) from any threat which may be on the person. The data on any personal device is not a threat. Another allowable excuse is “probable cause”. Show me where carrying a personal device of any kind is probable cause for searching its content. SCOTUS better get this one right, or we are one step closer to being a full blown police state. (Actually, we crossed that line a long time ago when police started being issued military weaponry, and midnight tactical raids became SOP.)


zewazir, you’re wrong. That’s Ok because there is a lot wrong on this thread. When the police stop your car, they are allowed to look at things in plain sight. They could open the battery flap for your phone, because it might not really have a battery in there, but drugs hidden. If you have a sheet of paper with names and phone numbers, that’s in plain sight and they are allowed to look at it.

The Massachusetts ruling recognised that an iPhone, or comparable phone, can have massive amounts of data stored. More than _anybody_ had on their PC in say 2005 or even 2008. And that’s a lot more than the 2KB you mention, which is about the same as I can write on a sheet of paper.

And I would say that information that is passcode protected is not in plain sight and would always need a warrant.


Gnasher: exactly how does the information IN YOUR PHONE qualify as being “in plain sight”. No, it does not. And, again, it does not matter HOW MUCH data we are talking about. 2K or 2TB, it is all personal information, which is protected by the 4th Amendment of our Constitution. Period.

You say I am wrong? Well, maybe according to the budding tyranny we are allowing to develop under our noses, I am wrong.  But according to the Constitution, I am not wrong.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The information held on a personal device NO MATTER HOW SMALL is a personal effect, and is therefore protected from unreasonable search and seizure. When someone is pulled over for a traffic violation, there are certain factors which may fall under the heading of contributing factor to the fact that the person was violating one or more traffic laws. Were they drinking? Under the influence of drugs?  Reasonable search would apply to those factors, assuming they are, as you say, in plain sight. That rum bottle on the passenger seat, for instance.

Unless you can explain how the information on that person’s phone could be considered a contributing factor in their traffic violation, it is NOT reasonable search to include that information without a warrant. Battery?  Guess what: if the phone is WORKING, there ain’t no drugs where the battery should be. (DUH!)

Hint: REASONABLE search (without warrant) only applies to items DIRECTLY related to the reason for the person having been pulled over or otherwise interacting with law enforcement persons. Again, a personal device DOES NOT APPLY to that description, no matter what those morons on the CA supreme court claim.

We, the PEOPLE of this nation have been watching our rights and protections from excessive government be eroded on almost a daily basis.  It is about time we started acting like our freedoms actually mean something to us, before they take them all away.


I wonder if there’s a difference with regard to ability-to-search depending upon whether the phone was on your person or just in the car?


We should not be narrowly focusing on what the fourth amendment says and what the constitution or the law states in the USA. The issue of privacy is a global one and concerns every user of an Iphone or smart phone worldwide. It is the battle between ordinary citizens and global multinationals and tech companies

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