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Star date 2013: the Fourth Amendment in a device-driven world

Forty-some years ago, on the original Star Trek, those "communicators" that Captain Kirk and others flipped open so effortlessly seemed so cutting edge. In the last decade, however, as cellphones have become the norm in American life, what once was cutting edge has become an everyday reality. 

In fact, to continue the Star Trek analogy, it isn't just that cellphones are like communicators, able to communicate wirelessly at great distances. Cellphones, when they are smartphones, have become like "tricorders" are on Star Trek, powerful computers able to store and process vast amounts of data.

In the science-fiction reality that we are living now, then, what are the constitutional limits on searches of electronic devices?

The issue is sure to arise in all sorts of contexts, from drug charges to white-collar crime investigations.

In one case that has been appealed to the U.S. Supreme Court, police performed a warrantless search of the call log of a cellphone seized during a drug arrest. That case is called United States v. Wurie. 

A federal appeals court has already held in the Wurie case that searching the call log without a warrant violated the suspect's Fourth Amendment rights. The court reasoned that people have a reasonable expectation of privacy in that type of information.

The Justice Department contends, however, that the search was justified as a search incident to arrest. Search incident to a valid arrest is one of the recognized exceptions to the warrant requirement.

The arrest in question occurred in 2007, the year before the first i-Phone was sold.

Today, according to recent data, two-thirds of American adults have a smartphone. And many of those devices are password-protected. Others even require biometric information to log in. This could include scans of fingerprints or eyes or the use of voice recognition software.

The more such features are used, the greater the expectation of privacy becomes. And that has implications for the court decisions on Fourth Amendment protections that are sure to follow.

Source: The Washington Post, "Police should be able to seize a suspect's phone - sometimes," Gary Shapiro, Sept. 29, 2013

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