Justices Urged to Review Cell Phone Searches
Adam Gershowitz, a William & Mary Law School professor who has written about cell phone searches, said the Robinson Court could not have contemplated the potential evidence that today’s smartphones can contain.
“The amount of information that’s accessible if we take this doctrine to its logical conclusion is almost unimaginable, and it’s just going to get wider and wider and wider,” Gershowitz said.
Under Robinson, police have perused pocket diaries and address books that they seize after an arrest. The government in Wurie argues that cellphones are no different.
“It would be anomalous to provide arrestees who use more sophisticated technology a special protection from police investigation that does not apply to those who keep records of their criminal activity with only pen and paper,” Justice Department lawyers wrote in their petition, filed in August.
The government also argues that searches like the one that Wurie faced are valid because police need clear rules when making on-the-spot decisions; arrested people have diminished expectations of privacy; and cell phone contents can be destroyed remotely.
Fisher, though, says that two key justifications for the search-incident-to-arrest doctrine—officer safety and fears about destruction of evidence—do not apply. Police can ensure that no one ruins a phone’s contents by turning it off or putting it in a signal-blocking bag, he wrote.
Instead, Fisher argues, the warrantless searches are unreasonable because of the “profound privacy concerns” they raise. A cellphone is not a closed container a la Robinson, he wrote, but a “mini, yet powerful, computer that happens to include a phone.”
Jamie Schuman is a freelance writer and graduate of The George Washington University Law School.