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Examiner
  • Ken Garten: Your cellphone and the Fourth Amendment

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  • In my lifetime telecommunications have advanced from land lines, CB's and walkie talkies; to multi-line telephones; to fax machines; to car phones; to mobile flip phones; and now to smart phones and iPhones and the like, which are in essence handheld computers with miniature screens, keyboards, speakers and microphones that can access, store, and assimilate photos, books, movies, music, documents, conversations, and all of the data of a person's life in one hand-held device that can be carried around in their pocket.
    I find it all pretty amazing.
    Not only do these technological advances make life more entertaining, interesting, and perhaps complicated, they also raise myriad new legal issues that must be addressed by the criminal justice system, far beyond the contemplation of our forefathers who drafted the Constitution and the Bill of Rights.
    Take for example the case of Riley v. California, a landmark search and seizure case decided last month by our United States Supreme Court.
    By way of background, the Fourth Amendment to the Constitution was drafted in 1789, at a time when electricity was but a little understood scientific discovery, decades prior to any practical use for the benefit of mankind, and centuries before the advent of smart phones and iPads. It states:
    “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.”
    Despite its advanced age, the Fourth Amemdment is still the law today.
    And over the years, our Courts have come to recognize a number of exceptions to the Fourth Amendment warrant requirement, one of the more significant being the search incident to a lawful arrest.
    What this means is that if police have the legal right to arrest someone, be it based upon observations of criminal activity or a warrant, then they also have the right to search an arrestee and the area of arrestee's immediate reaches, without a search warrant.
    In Riley v. California, which is really two consolidated cases that presented the same issue, one of the defendants was arrested for a suspended license, searched, and a warrantless search of his smart phone found on his person revealed photos and other indications of gang activity and photographs of the defendant standing in front of a car linked to an earlier gang shooting. This evidence was used to help prosecute and convict the defendant.
    In the other case, the defendant was observed making an apparent drug buy on the streets and was arrested. A search of his person yielded a phone that helped tie him to major drug trafficking activity, for which he was also charged convicted.
    Page 2 of 2 - The question presented in Riley v. California was, if a person is lawfully arrested and then lawfully searched incident to that lawful arrest, without a warrant, do the police then also have the unfettered right to search through the information on a smart phone or cell phone found on the person?
    In determining the issue, the Court looked to the rationale behind law enforcement's right to search an arrestee and his area of immediate reach without a warrant.
    One reason is officer safety, to search for weapons.
    Another is to prevent destruction of evidence by the arrestee.
    In noting that neither of these rationales is significant when a phone is found and siezed by police, the Supreme Court held that a search warrant must be obtained before the content of such a device is searched, even where it is seized in a legal search incident to arrest.
    And so the defendants in Riley v. California were the beneficiaries of a favorable ruling by the Supreme Court, setting aside their convictions in a landmark case that has refined and given direction to law enforcement procedures when legal searches yield mobile phones.
    Ken Garten is a Blue Springs attorney. Email him at krgarten@yahoo.com

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