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The Fourth Amendment could be redefined

Posted by Craig Penrod | Mar 17, 2014 | 0 Comments

In April, the U.S. Supreme Court will be considering how law enforcement agencies and officers are involved in searching the contents of cell phones as the result of a pair of huge cases.

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In 2001, the Supreme Court limited the use of high-tech devices for searching homes. In its early 2012 decision in United States v. Jones, a unanimous court agreed that government agents are not allowed attach a global positioning system (GPS) device to a motor vehicle or the purpose of tracking it without first being granted a search warrant. The majority opinion in the Jones case found that attaching the device to the vehicle was at the heart of the Fourth Amendment violation as four concurring members of the court felt that the government's tracking the vehicle was a violation of a person's "reasonable expectation of privacy."

The cases that will be argued in April ask whether government agents are entitled to search the cell phone of a person that has been arrested because the cell phone has been properly seized. The cases of Riley v. California and Wurie v. United States do have both similar and differing facts. Hopefully, this will allow the court to look at all of the issues and provide a ruling that clarifies many of the issues that have been raised by the digital era.

A brief filed in Riley v. California seeks to guide the court toward using time-tested principles in Fourth Amendment cases rather than vague pronouncements about privacy and people's expectations. "Courts should examine whether there was a seizure or search," the brief concluded, "and whether any such seizure or search was of persons, papers, houses, and effects. If those conditions are met, courts should examine whether the warrantless seizures and searches were reasonable."

The brief also argues that the court should carefully look at the many distinct seizures and searches that occur in the typical law enforcement stop. The brief urges the court to recognize that the search of a phone is a distinct, additional step in the seizure process. Thus, the examination of the contents of the phone should require its own legal justification.

The brief suggested that the contents of cell phones are in reality distinct "papers and effects," which serve the same purpose that papers, postal mail, books, drawings and portraits did when the Fourth Amendment was drafted and approved more than two centuries ago.

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About the Author

Craig Penrod

Craig W. Penrod was born and raised in Arizona and has practiced criminal defense for over 30 years. Mr. Penrod is a member of the State Bar of Arizona, Maricopa County Bar Association, State of Nevada Bar Association, American Bar Association, American Trial Lawyers Association, Arizona Trial Lawyers Association, Nevada Trial Lawyers Association, Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers.

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