The United States Supreme Court handed down its decision in two very important
Fourth Amendment cases involving privacy and smart phones this past week.
The two cases,
Riley v. California and
United States v. Wurie(decided together), addressed the question of whether police need a search
warrant to rummage through your phone.
In what is truly a landmark ruling, the Supreme Court said yes, police
need to get a warrant. This decision brings to a halt the recent practice of police across the
country of going through arrested citizens’ smartphones at will,
searching through photographs, text messages, voice mails, emails, call
logs, and other private information looking for incriminating evidence.
I have written several times about the issue of cell phone privacy in the
context of the Fourth Amendment. Last year, I argued
State v. Granville before the Texas Court of Criminal Appeals. In
Granville, the police took a smartphone from the inventoried jail property of Mr.
Granville and, without a warrant, powered up the phone and searched through
its contents until they found a photograph they were looking for. The
photograph was taken in a high school bathroom and showed the back of
another student at a urinal. Mr. Granville was arrested and charged with
Improper Visual Photography, a state jail felony in Texas.
My friend, Paxton Adams of Huntsville, persuaded the judge in the case
to suppress the photograph on the grounds that the police had violated
the Fourth Amendment because they did not first seek a search warrant.
I was appointed to help on the appeal and it went all the way to the Texas
Court of Criminal Appeals.
Our argument on appeal was that a modern smartphone is just not like a
pair of pants. In a long line of cases, both federal and state courts
have ruled that there is such a diminished expectation of privacy attendant
to an arrest, that the Fourth Amendment is not implicated and a warrant
is not required before the police can search your person and effects associated
with you when arrested. So, there is no need for a warrant to search the
clothing one is wearing when arrested. Also, because we want police to
protect themselves and prevent the destruction of evidence, our courts
have uniformly held that when a person is arrested, his or her person
can be searched “incident to arrest,” including any containers
they find on the arrestee’s person.
But, sometimes it takes a while for case law to catch up to technology.
And, in the past 10-15 years, with the advent of smart phones, personal
tablets, and laptops, technology has left our Fourth Amendment jurisprudence
in the dust. By that I mean that the protections of the Fourth Amendment’s
prohibition against unreasonable searches and seizures as interpreted
by our state and federal courts have been wholly inadequate to address
the privacy issues presented by our exponentially advancing technology.
Compounding that problem (and yes, I think the weakening of the Fourth
Amendment in the past few decades is a huge problem for freedom-loving
Americans), is the trend over the past decades by conservative majorities
of courts to find ways around the Fourth Amendment. Our Texas Court of
Criminal Appeals, one of the most conservative criminal high courts in
the country, is a very good example.
I can't tell you how many times I have identified what I believe to
be a legitimate Fourth Amendment issue in a criminal case only to find
a case out of the Court of Criminal Appeals that shoots down the argument.
It almost seems as if they bend over backwards to uphold a search or seizure
in the face of a strong legal challenge. It is incredibly disheartening.
The United States Supreme Court has been somewhat schizophrenic in Fourth
Amendment cases. It is very rare to see an opinion from the Supreme Court
on a Fourth Amendment issue that is not 5-4, decided down partisan lines.
So, it was very refreshing to see the Texas Court of Criminal Appeals render
an 8-1 opinion in favor of requiring police to obtain search warrants
before powering up a citizen’s phone and foraging for incriminating
evidence in theGranville case. I’d like to say it was our persuasive brief and my eloquent
argument before the judges of the Court of Criminal Appeals, but I think
there was something else at work.
So how to explain an 8-1 decision out of our uber-conservative high court?
Or, the 9-0 (that’s 9 out of 9, as in unanimous, as in somehow all
nine members of the United States Supreme Court managed to agree on something)
decision to protect the privacy of American citizens in their ruling this
past week in the
I have a theory. And, I think it’s a good one.
All the members of the Texas Court of Criminal Appeals and the United States
Supreme Court have smart phones on which they store their personal emails,
texts, voicemails, financial records, passwords, medical information,
browsing history, call logs, photographs, and personal notes.
When we prepared our arguments for
Granville, we recognized that smart phones were just different than pretty much
everything else. We also recognized, and capitalized upon, the fact that
the people to whom we would be arguing, and who would be making the call
on this issue, had
their own cell phones and would likely feel, we believed, pretty strongly about
having the police go through their phones without a warrant or even probable
cause. We knew we were on the right track and that the jurisprudential
calculus would be appreciably different in
Granville when Judge Cathy Cochran, one of the smartest jurists to ever sit on the
Court of Criminal Appeals, somewhat incredulously posed this question
to the attorney for the State during argument: “Do you mean that
if I am arrested for a seat belt violation, the police can just go through
is personal. The issue hits home. And yes, that was your government’s
position, that police should be able to go through your phone if you are
arrested, without probable cause and without a warrant. Ultimately, in
both the high State court and the Supreme Court, that argument was poorly
received by judges and justices who were probably checking their emails
and texts on their smart phones during oral arguments.
Too many Fourth Amendment decisions are made from an objective, “ivory
tower” perspective by judges unlikely to be affected personally
by their rulings. When it hits this close to home, when the judges themselves
perceive that their own privacy rights are implicated, the landscape changes
Over the course of the last few decades, the protections of the Fourth
Amendment have been eroded significantly by decisions of the Supreme Court
and Texas’s high court. The decision in
Riley draws a line in the sand…finally. Now that our judges and justices have a sense of how it feels to face
the potential of their government invading their own personal spaces,
let’s hope we are entering an era of jurisprudence that reverses
the trend of the recent past and begins to restore the protections of
the Fourth Amendment to Americans and Texans.