Before 1967, police officers were less restricted when they wanted to gather evidence. In Supreme Court case Olmstead v. United States, Fourth Amendment protections were said to only be triggered when there was a physical trespass. See 277 U.S. 438 (1928). A few decades later, in 1967, the Supreme Court, in Katz v. United States, when police officers tapped a phone booth, found that even though there was not technically a physical intrusion on a specific person or a home, there should still be privacy given to the citizens involved. See 389 U.S. 347 (1967). From the concurrence of this case came the way that we currently analyze Fourth Amendment cases: the idea of a reasonable expectation of privacy. See id. at 360–62. This expectation is found when there is a subjective expectation of privacy, as when an individual person believes that they deserve privacy. However, due to the different ideas of privacy that individuals may have, society must also find this expectation of privacy reasonable. For example, one may believe that they have a reasonable expectation of privacy in the Facebook messages that they send to another person. However, society would not necessarily find that expectation of privacy to be reasonable—you cannot automatically assume that the messages that you send to others will be safe or kept private. See Lopez v. United States, 373 U.S. 427, 439 (1963) (discussing the risk one takes when communicating with others).
Griswold v. Connecticut and Roe v. Wade are two examples of Supreme Court cases that confront privacy from a different perspective: the privacy to make your own decisions about your life or your body. See Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022), and holding modified by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). Yet, beyond your body, what happens when you communicate with others? Are those data truly yours, or do police officers have unlimited access?
The Constitution has provided two main ways to protect communication records that could become evidence: the Fourth and the Fifth Amendments. The Fourth Amendment is more popular as it pertains to privacy from the government, but the Fifth Amendment offers valuable protection from evidence as well. This article first discusses the Fourth Amendment, before addressing the Fifth Amendment and then the First Amendment, while considering an example of a citizen concerned about her constitutional rights when living in a state that has banned abortions.
The Fourth Amendment
The Fourth Amendment protects against unreasonable searches and seizures conducted by the government: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The Fourth Amendment can be broken up into two sections for clarity: the right to be secure against unreasonable searches and seizures; and no warrants shall be issued without probable cause that particularly describes what is to be searched or seized.
The first question to ask in a Fourth Amendment inquiry is whether a search or seizure even occurred. For example’s sake, let’s say a woman named Marge is someone who is always curious about her constitutional rights. She is currently on her laptop in a popular coffee shop that police officers frequent in a state where there is currently an abortion ban. A police officer believes he sees her on a website with information regarding abortions. However, he only gets a glance over her shoulder before she abruptly stands up. She smiles at the police officer, minimizes the website, and walks away with the laptop still open. The police officer then clicks to reopen the website, but it was just a social media site. When she returns, she is enraged to find the officer snooping on her computer. She states that the Constitution protects her from this incident.
Marge is correct, but only for half of the incident. When the police officer was glancing over her shoulder at her laptop, that falls within the plain view exception. Any evidence that is seen in plain view means that a warrant is not necessary for that search to occur. See Plain View, JUSTIA (last visited June 25, 2023). Of course, this exception is only valid if the police officer was legally allowed to be in the space in order to see something in plain view. For example, an officer cannot randomly break into someone’s house without cause and then claim that everything that he saw was in plain view. He had no reason to be in that house, he was not authorized to be in that house, and therefore the Fourth Amendment would protect that house from an unreasonable search. See id. With Marge, once the officer started clicking around, this is where the Fourth Amendment would come into play. This now moves beyond the plain view exception and into a full-on search that would require a warrant. Clicking around in a laptop can be analogous to opening a closed briefcase: Any papers that could be seen when the briefcase was open, or if they were not all the way inside of the briefcase, could be subject to plain view. However, once an officer clicks the lock that would pop the briefcase open, there needs to be a reason and permission for the search—probable cause and a warrant. Thus, a search did occur.
However, was the search unreasonable? In this case, it was. Moving to the second half of the Fourth Amendment, there must be a warrant. In order for there to be a warrant, there must be probable cause. Police officers have to describe in detail exactly what they want to search or seize. In cases that involve a laptop, specificity has been a popular point of discussion regarding whether police officers complied with the warrant requirement. See Particularity, JUSTIA (last visited June 22, 2023). Due to the potential breadth of what one may find on a computer, police officers are not required to list each and every folder they plan to search or even each and every method they plan to employ. See, e.g., United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017). Explaining to the judge that they need to search a device, that they have probable cause to believe that the evidence they need is on that device, and why they believe so is enough. In Marge’s case, if the police officer had a warrant to search for evidence that Marge had an abortion, he would have been authorized to click and open the website that he had noticed before.
It may be harder to convince a judge, however, that it was necessary for the officer to search a folder called “puppies.” If the officer quickly looks through that folder and notices that there really are pictures of puppies, he would generally not be authorized to continue searching within the scope of the warrant. However, this depends on the judge and the case as plenty of search warrants authorize a search of the entire computer. Marge would still be in her right to argue that it was an unreasonable search of her puppy folder and may be able to offer convincing evidence that the continuous search of that folder was unnecessary.
Now, one could make an argument for consent. There are a few exceptions to the warrant requirement, such as plain view, a border search, exigent circumstances, or consent. See Exceptions to the Warrant Requirement, Legal Info. Inst. (last visited June 20, 2023). Marge saw the police officer behind her when she stood up. In fact, she smiled at him. She may have just been polite, or there could be an argument for implied consent here. The fact that, in a world of advanced technology, Marge decided not to turn her laptop off, or even close it, states that she may not have minded if someone clicked around. She could have completely closed the tab, instead of minimizing it. This argument is not the best, so maybe the police officer would argue that there were exigent circumstances: He could have been scared that the evidence of her website visit would be deleted (although this is a weaker argument given the technological capabilities that make it difficult for things to truly be deleted). If an exception is sufficient, then a warrant is not needed for the search to have occurred. If the search did occur, and the police officer found something incriminating on Marge’s computer, Marge would have more protection over her evidence while in court due to the fruit of the poisonous tree.
In this case, because the police officer did not get a warrant before searching, and there is not a valid exception that would make a warrant unnecessary, the evidence that he discovered would not be admissible in court. That evidence, and even anything found because of that evidence, would all be considered “fruit of the poisonous tree” and would not be able to be used in court. See, e.g., Nardone v. United States, 308 U.S. 338, 341 (1939). Thus, even if the Fourth Amendment cannot protect evidence before it is searched, there are protections that extend to the courtroom.
As technology advances, so do the protections from the Fourth Amendment. Access to data that are as comprehensive as location data, health data, and other communication records may fall under two cases that now guide a lot of discussion dealing with privacy and technology: Riley v. California and Carpenter v. United States.
Carpenter v. United States is a Supreme Court case that revolutionized the way that location data is analyzed. See 138 S. Ct. 2206 (2018). Police officers rely heavily on their ability to petition companies for their data. They are able to do this because of the third-party doctrine: Bank records and telephone records are two examples of records that are not given the privacy that other documents may have. See, e.g., Smith v. Maryland, 442 U.S. 735, 744 (1979). The telephone company and the bank have access to those records, which means that when you volunteer to do business with that bank or telephone company, you cannot expect that information to remain private and confidential. You are voluntarily giving that information up, so the police, under the third-party doctrine, are able to petition that bank or telephone company for the logs of information that they keep.
In Carpenter, police officers went through the proper channels to gather cell site location information on the defendant. See 138 S. Ct. 2206. This would have been normal in any other circumstance; however, the sheer amount of information gave the Court pause. The Court held that due to the expansiveness of information that one can garner from cell site location information, a warrant is necessary, which means that the third-party doctrine does not apply to evidence that is as intrusive as cell site location data. See id. at 2220. This case has also opened the opportunity for more conversations about the expansiveness of different sources of information and whether that evidence should be as easily accessible to the police. If an application becomes available where health data are gathered and the information becomes as expansive and comprehensive as the data in Carpenter, the argument could be made for more protection of those data. Thus, if police officers wanted to utilize the third-party doctrine to gather information about Marge from an app that she uses on her phone to track her menstrual cycles, for example, there may be arguments, thanks to Carpenter, that access to those data is too expansive.
Riley is a case that has to do with cell phones in particular. In that case, it was found that cell phones are not allowed to be searched without a warrant. See Riley v. California, 573 U.S. 373, 401 (2014). That case dealt particularly with a search incident to an arrest, which is also a search that does not require a warrant. However, the Court found that this exception does not apply to cell phones and that a warrant is required because “[t]he storage capacity of cell phones has several interrelated consequences for privacy.” Id. at 394. Cell phones can contain a wide variety of information, including a multitude of communication records. Due to their storage capacity and technological capabilities, they are granted Fourth Amendment protection. In Marge’s case, if police officers had arrested her based on her violation, in some form, of a state abortion ban, they would not have been able to search her phone to find out more information without a warrant.
The Fifth Amendment
The Fifth Amendment also provides some protection of evidence. This protection is not the same as for a search; instead, it focuses on the type of evidence. If the evidence is compelled, incriminating, and testimonial, the evidence would enjoy Fifth Amendment privilege.
The Fifth Amendment reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V. For evidence purposes, this section is important: “nor shall be compelled in any criminal case to be a witness against himself.” Id. Many may not think that this necessarily pertains to evidence, or is a strong protection for evidence, but conversations surrounding the privilege may become more important as technology advances.
Compulsion occurs if there is a legal penalty for failure to comply with an act. See, e.g., United States v. Hubbell, 530 U.S. 27, 34–35 (2000). Evidence is testimonial if it requires an individual to divulge the contents of his own mind. See id. at 37. Evidence becomes incriminating if the person has reasonable grounds to apprehend danger from the compulsion to answer. See, e.g., Andresen v. Maryland, 427 U.S. 463, 475 (1976). For example, if Marge was forced to produce certain documents, relating to a previous abortion, to the police through subpoena, that very production communicates that the documents exist, are in Marge’s possession, and are authentic. See, e.g., United States v. Doe, 465 U.S. 605, 613, n.11 (1984); Fisher v. United States, 425 U.S. 391, 408 (1976). This means that Marge would be required to divulge potentially incriminating contents from her mind, implicitly, by admitting that the documents existed, were in her possession, and were authentic. She would be compelled to give the documents up because failure to comply with the subpoena could lead to civil or criminal liability, and, depending on the documents, Marge may believe that by giving up the documents, she could be in danger of being jailed or fined. Thus, in this simple scenario, these documents have Fifth Amendment protection.
If the government already knows that Marge possesses the documents, this would make it a foregone conclusion and it would not be testimonial. See Fisher, 425 U.S. at 411. Otherwise, Marge would have the protection of the Fifth Amendment to protect her documents from becoming evidence. This legal privilege would quash any order that would compel any documents.
Any potential sources of evidence that are locked behind a typed or even spoken password are safe—again, a person cannot be compelled to divulge the contents of their own mind. Once biometrics enter the picture, it is more difficult because evidence such as fingerprinting or DNA does not have Fifth Amendment protection. See, e.g., United States v. Wade, 388 U.S. 218 (1967). There may be arguments for biometric passwords being seen in a similar way to regular, typed-in passwords and, thus, also being testimonial and granted Fifth Amendment protection. This is why the Fifth Amendment expands the privacy discussion in a different way than the Fourth Amendment is able to. While the Fourth Amendment would ensure that the search or seizure is reasonable, the Fifth Amendment focuses on whether police access to that evidence places the individual in a specific position where they are compelled to give up incriminating, testimonial evidence.
The First Amendment
There may also be a convoluted, yet interesting, First Amendment argument to be made. If people become fearful that every piece of communication that they post or send could become evidence, it may chill their speech, which would violate the First Amendment.
The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Const. amend. I. As it pertains to the privacy of evidence, the government cannot abridge the freedom of speech. While the Amendment states that Congress shall make no law, there are cases where the privilege of the First Amendment is often argued in regard to state governments and laws. See, e.g., Snyder v. Phelps, 562 U.S. 443 (2011) (discussing matters of state tort liability and the First Amendment); Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) (discussing matters of a state speaker-restricting law and the First Amendment). Thus, this Amendment does pertain to more than just congressional action.
If Marge was in a private chat room sharing resources regarding abortion aftercare, and someone told her that the police automatically had access to everything in the chat, Marge may not want to post in that chat room anymore. The First Amendment may interplay with the Fourth Amendment in the area of communication records: Marge, if she believed that what she was about to type would immediately be seen by the police, may believe that there is a constitutional violation because her speech was abridged. This would be coupled by a potential constitutional violation if there was not a warrant for the search of that communication. The potential search by the police officer is what could abridge that speech, and even without the search occurring, Marge’s First Amendment rights are still valid. Thus, the Fourth Amendment’s protection of evidence from unreasonable searches also leads to First Amendment protection: People are free to communicate with others without fear of constant governmental evidence collection.
The First Amendment may also intersect with the Fifth Amendment privilege. Everything that Marge types into the private chat room would be from her own mind and would thus be testimonial. Marge could not be compelled to give up the potentially incriminating transcript of her chat room. Thus, because of her Fifth Amendment privilege, she would not need to watch what she was saying in the chat room.
Conclusion
Privacy, and thus the security of evidence, is present in the law. The Fourth Amendment allows Marge the freedom from unreasonable searches of herself and her technology. The Fifth Amendment provides Marge with freedom from compelled divulsion of the contents of her mind. The First Amendment allows Marge to speak freely, even if she is speaking about a law that she may be violating. These rights all intersect as well to offer Marge some security of her communication and, thus, some privacy. These protections that the Fourth, Fifth, and potentially First Amendments provide are also paralleled in state constitutions. Even for state constitutions that may lack in providing that privacy and security, the U.S. Constitution is the law of the land and would preempt any law that conflicts with or does not offer the needed protection. Although security today may be thought of as simply a superstition, and the idea of privacy is still being defined within the United States, access to evidence is afforded some constitutional privacy and protection.
