When It's Personal, Suddenly the Fourth Amendment is a Big Deal

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 Riley and Wurie cases?

I have a theory. And, I think it’s a good one.

It’s personal.

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 my phone?”

Ahh. It 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 dramatically.

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.

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