The court has started the process, of course. In the recently completed term, a majority said technological advances in how quickly warrants may be obtained mean that in most cases police officers must obtain one before forcing a suspected drunk driver to take a blood test.
And, over a sharply worded dissent from Justice Antonin Scalia, the court went a long way toward endorsing DNA testing as the modern-day equivalent of fingerprinting. It approved of Maryland’s law that allows police to take DNA swabs at the time someone is arrested for — not convicted of — a major violent crime.
Now, amid a national debate over how much the government should be able to find out about the private activities of its citizens in the name of combating terrorism, the next issue seems teed up for Supreme Court review:
More than 85 percent of Americans carry one, and the devices provide authorities with more than just a vast record of a person’s travels and phone calls. Modern smartphones have a memory capacity equal to that of a typical home computer in 2004, capable of storing millions of pages of documents.
“That information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email and voicemail), contacts, calendar appointments, web search and browsing history, purchases and financial and medical records,” Judge Norman H. Stahl of the U.S. Court of Appeals for the 1st Circuit wrote recently. “It is the kind of information one would previously have stored in one’s home.”
Stahl wrote for the majority in a 2 to 1 decision that applied the Fourth Amendment to the search of a cellphone found on a man arrested for selling drugs. The amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
In most cases, a warrant is required. But the Supreme Court has said there are numerous exceptions to that general rule. In particular, in what courts refer to as “search incident to arrest,” a warrantless search is justified when officers are protecting themselves by looking for weapons or securing evidence that might be destroyed.
And justices in the past have been lenient about allowing searches of items found on a person who has been legally arrested.
But Stahl and fellow Judge Kermit V. Lipez disagreed with the government’s contention that a cellphone is “indistinguishable from other kinds of personal possessions, like a cigarette package, wallet, pager or address book, that fall within the search incident to arrest exception” approved by the Supreme Court.