August 14, 2014 Articles

Recent Cases Limit Government's Ability to Search Phones, Computers

A modern interpretation of the Fourth Amendment?

By Aaron M. Danzig

The Founding Fathers were extremely concerned about the ability of the government to enter a person’s home with a broad, general warrant or no warrant at all and search papers, correspondence, pictures, calendars, etc., for evidence of criminal activity. “The Framers abhorred this practice, believing that ‘papers are often the dearest property a man can have’ and that permitting the Government to ‘sweep away all papers whatsoever,’ without any legal justification, ‘would destroy all the comforts of society.’ Entick v. Carrington, 95 Eng. Rep. 807, 817–18 (C.P. 1765).” United States v. Ganias, 2014 U.S. App. LEXIS 11222, at *20–21 (2d Cir. June 17, 2014). “Opposition to such searches was in fact one of the driving forces behind the Revolution itself.” Riley v. California, 573 U.S. ___, 2014 LEXIS 4497, at *50 (June 25, 2014). But the framers of the Constitution are unlikely to have ever imagined that all of the documents in a person’s home—indeed, all records of one’s life and business—could be stored on a single device small enough to fit in a suit pocket. Such is the issue in two recent cases that have applied Fourth Amendment search-and-seizure concepts to modern technology. These cases held that the government overstepped its authority in searching a cell phone incident to arrest without a warrant and in retaining indefinitely a mirror image of a computer hard drive even if initially seized pursuant to a valid warrant.

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