As reported by the New York Times and SCOTUSblog, the Supreme Court will hold hearings today on two cases - one involving a cellular "flip-phone" and another involving a smartphone - that tests the authority of police to take and search these devices from people they have arrested . Lower courts are split on whether the Fourth Amendment allows them to search the digital contents of a cell phone or smartphone without first getting a warrant as an "incident of arrest."
The Justice Department will argue that courts have long allowed warrantless searches in connection with arrests in order to protect police officers and prevent the destruction of evidence, and that the old rule should apply to new devices like cell phones and smartphones. Others argue that a different standard must apply because of the massive volume of data on these devices. For example, one Texas Criminal Court of Appeals recently suppressed evidence found on the phone of a high school student who was arrested on charges of causing a disturbance on a school bus. In ruling, that court stated that: "Searching a person's cellphone is like searching his home desk, computer, bank vault and medicine cabinet all at once."
As noted by SCOTUSblog, the Supreme Court has shown interest in recent cases examining constitutional questions surrounding new technology. The Court will find itself faced with two arguments about the nature of cell phone/smart phone devices: "their capacity to be great electronic albums of vast amounts of private and sensitive information, and their capacity to be troves of information revealing criminal plots and actual evidence of violence as well as of data that is a rich lode to leaks to other evidence." Stay tuned to find out which argument the Supreme Court finds to be more persuasive - and ultimately whether warrants are required to search these devices.