Monday, October 4, 2010

“Doctrinal Collapse: Smart Phones Cause Courts to Reconsider Fourth Amendment Searches of Electronic Devices.” 

This article will be published in the University of Memphis Law Review in fall 2010.  In this project, I consider the implications of a recent decision by the Ohio Supreme Court.  The court held that if a cell phone is lawfully seized incident to arrest, the Fourth Amendment prohibits the police from searching the contents of the cell phone without a warrant.   The Ohio Supreme Court opinion is remarkable because it abandoned long standing precedent that a search incident to arrest includes the ability to search the contents of any container found on the person.   Federal courts, relying on this “Container Doctrine,” previously have almost universally permitted the search of contents of electronic devices such as pagers and cell phones.  My research suggests that the Ohio Supreme Court’s recognition that the technological sophistication and nature of use of modern cell phones has created heightened expectations of privacy and, therefore, is an indicator of a coming collapse of the Container Doctrine with respect to cell phones. 

My research explains that the Ohio Supreme Court decision is representative of a growing tension between traditional Fourth Amendment doctrines and sophisticated technology.  The decision, I suggest, signals a future willingness by courts to treat the differences between modern electronic devices and the traditional justifications for permissible law enforcement tactics as not one of degree, but of kind.   This tension is not limited to the Container Doctrine.  For example, in reviewing the use of GPS tracking devices on private vehicles by law enforcement, state courts have departed from long standing federal precedents holding that the placement of these devices without a warrant is permissible.  The previous precedents had been justified on the doctrine basis that there is no reasonable expectation of privacy in movements on a public roadway.  Accordingly, under this doctrinal approach, a GPS device merely augments what the police could accomplish through traditional surveillance.  As with cell phones, this doctrine is under pressure due to concerns that the technological sophistication and nature of use of GPS devices has created a greater expectation of privacy. 

My research has led me to conclude that traditional Fourth Amendment doctrines are unable to account for advances in technology.  Instead of relying on doctrines established by “traditional” law enforcement practices, I propose courts should require a warrant whenever the examination of a particular electronic device is likely to lead to the discovery of the type of intimate details about a person that would typically be protected by the First Amendment.  For example, in regards to smart phones, a warrant would be required because an examination of the contents of a person’s e-mails, text messages, documents, and photographs could provide an observer with the ability, for example, to learn the political or religious views of the owner.  Similarly, in regards to GPS tracking, a warrant would be required because the gathering of detailed data on a person’s whereabouts could provide an observer the opportunity to learn about a person’s habits and associates.

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