The Supreme Court is set to decide whether police may conduct a warrantless search of cell phone technology, incident to an otherwise lawful arrest. In U.S. v. Wurie, the issue is whether the police may venture into the call log on a cell phone to uncover possible evidence of a crime. In Riley v. California, the question is slightly broader. In both, the Court must draw lines between permissible investigatory conduct by the police, post-arrest, and the privacy expectations that come with constantly developing cell phone technology.
Broadly speaking, the Court’s task is to decipher whether the information stored on smartphones, both willingly and unwittingly, implicates the protections of the Fourth Amendment. But on top of that, any doctrine that the Court announces must recognize the diminished expectations of privacy that have been found for property other than the home. The protection afforded to automobiles is one of those areas.
The well-known automobile exception, initially found by the Court in Carroll v. United States, permits warrantless searches of a vehicle when the occupant of the vehicle is arrested, provided there is probable cause to believe that the vehicle contains evidence of the crime. Two justifications originally served as the foundation of the rule: (1) diminished expectations of privacy in cars; and (2) the inherent exigency (stemming from mobility) that evidence could be lost and/or destroyed. The doctrine has now developed to the point where exigency is no longer essential to a finding of reasonableness after a warrantless search. The reduced expectation of privacy is now the foundation of the exception.
Why is this relevant to Riley and Wurie? If the Court determines that individuals have significant expectations of privacy in their phones, it would seem that the foundation of the automobile exception is weaker. Specifically, individuals store many different types of information in their vehicles and purposefully keep them from public view. On the contrary, cell phone technology, and the information stored, is at least accessible by data providers, companies, and, in some instances, the government. Is it plausible to suggest that someone has a stronger privacy interest in his or her phone, which is connected through various networks and forms of technology to other users, than his or her automobile, which for many, is an additional storage area that happens to be mobile (which is no longer relevant according to the Court)?
Modest Commentary 