In my previous post, I discussed two cases soon to be heard by the U.S. Supreme Court regarding the 4th Amendment right addressing illegal search and seizure by law enforcement of cell phones and smart phones. My position was, and still is, those devices post no immediate threat to law enforcement personnel while the device is in their possession nor is there an exigent circumstance allowing for a warrantless search of the device.
Recently, a Federal Judge in New York State opined the same sentiment in the decision of USA v. Alvarez. In that case, boarder patrol arrested two women for aiding a man crossing into the US at the Canadian boarder. Prior to the actual arrest, Boarder Patrol confiscated the women’s cell phones and thereafter downloaded information from those cell phones without first obtaining a warrant. Notably, confiscated from the women was a GPS device, as well.
The Judge, in throwing out the evidence obtained from the cell phones, noted in his decision that the Boarder Patrol agents’ actions amounted to a search that was not justified by any exigent circumstance and not necessary to protect the Boarder Patrol officers safety. The judge went on to clarify his position by adding that, although the Second Circuit has not yet ruled on questions of warrantless searches of cell phones, the Judge equated such search to searches of computer hard drives. Computer hard drive searches, short of exigent circumstances, require a search warrant due to the plethora of private information contained therein and the expectation of privacy of that information.
I mentioned the GPS device earlier in order to highlight the distinction between electronic devices, that the Judge in the Alvarez case pointed out, to that I believe the Supreme Court will also draw in its final opinion. The Judge in Alvarez allowed the information the Boarder Patrol agents obtained from the GPS device, without a search warrant, concluding a GPS device is akin to a paper map. This is important because a paper map (and therefore a GPS device) does not contain information rising to the level of an expectation of privacy that a computer (or a cell phone) has. Since a paper map, laying in plain site does not require a search warrant before looking at the map, even if highlighted routes or marked addresses are on the map, then looking through a GPS device does not require a search warrant either.
I believe the U.S. Supreme Court will use similar logic when it renders an opinion in the cases pending before it. I believe in its opinion we will see language incorporating the principles of "plain view” doctrine and "exigent circumstances” doctrine competing with the expectation of privacy doctrine already established requiring search warrants for homes and personal computers.
My advise to clients, until the Supreme Court renders a decision and us attorneys have some guidance, is not to give consent to government officials if they want to "look through” your smart phone. Regardless whether or not you have anything to hide, the information on your smart phone is private unless you make it public. Therefore, if police want to view the information contained therein, they must obtain a search warrant first, unless you forfeit that right by giving consent.