The Fourth Amendment, Cell Phones, Jones, and the Founding

June 25th, 2014

One case was noticeably absent from Riley. Jones! In particular, there was no citation to Justice Scalia’s opinion. Though there was a passing mention to Justice Sotomayor’s concurring opinion on a fairly minor part about GPS.

But, there was this throw-away line about “guidance from the founding era,” without a citation, that sounds in Scalia.

Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individ- ual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U. S. 295, 300 (1999). Such a balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrant- less searches at issue here.

Here is the relevant passage from Wyoming v. Houghton, authored by (you guessed it) Scalia:

It is uncontested in the present case that the police officers had probable cause to believe there were illegal drugs in the car. Carroll v. United States, 267 U. S. 132 (1925), similarly involved the warrantless search of a car that law enforcement officials had probable cause to believe contained contraband—in that case, bootleg liquor. The Court concluded that the Framers would have regarded such a search as reasonable in light of legislation enacted by Congress from 1789 through 1799—as well as subsequent legislation from the founding era and beyond—that empowered customs officials to search any ship or vessel without a warrant if they had probable cause to believe that it contained goods subject to a duty. Id., at 150-153.

In any event, the Chief has a rousing return to 1761 and the writs of assistance to close the opinion.

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denounc- ing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886)). Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.