Fourth Amendment

"Every man's house is his castle," as the saying goes. Drawing on our experience with England, America wrote the Fourth Amendment at the founding of our country. The Fourth Amendment states, in part, "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..."

The Issue

However, as University of Houston Law Center professor Adam Gershowitz points out in his paper, "The iPhone meets the Fourth Amendment," Supreme Court precedent traditionally allowed for the search of cell phones "without warrant or probable cause." Many such searches resulted from simple traffic stops, or when police "with nothing more than a hunch" looked for evidence of criminal activity.

State v. Smith

The issue of warantless searches of cell phones was brought before the Supreme Court of Ohio in December 2009. In State v. Smith, the court decided that searching a cell phone without a warrant, even during a lawful arrest, is unconstitutional as long as it is not necessary for the safety of the officers or other extenuating circumstances.

Expectation of Privacy

Ohio Supreme Court Justice Samuel Danziger explains in State v. Smith, "Once the cell phone is in police custody," the evidence is preserved, "but because a person has a high expectation of privacy in a cell phone's contents, police must then obtain a warrant before intruding into the phone's contents."

Considerations

It must be stressed that with a warrant that details the items to be seized, including the cell phone, such search is totally legal. Until the warrant is obtained, the phone can only be held, except in extreme circumstances. Other exceptions and considerations will likely be "fleshed out" in future court decisions as the need arises.

Source:

Supreme Court of Ohio: Warrantless Search of Cell Phone Data Barred Unless Necessary for Officer's Safety or to Preserve Evidence

Social Science Research Network: The iPhone Meets the Fourth Amendment

San Diego District Attorney: Law Enforcement Legal Update

More Information:

The Constitution of the United States of America: 4th Amendment Search and Seizure