Ostensibly, cellphones have morphed into extensions of our body. Dining out. Relaxing at a park. Hanging out with friends. Watching television. Or just plain being on a phone for the sake of being on a phone. A growing percentage of the population can not seem to disconnect themselves from their cell phones. We take our cellphones with us wherever we go. There it is. Resting in our pockets. Or attached to our hands.
Be it texts, emails, social media, internet searches, placing calls, listening to voicemails — cellphones, in theory, can be just as helpful to law enforcement as a finger print, a confession, a hair follicle, saliva, videotape evidence, etc. But what about information on the cellphone that is not connected to the alleged conduct or act? Is that information also subject to search and seizure? A search warrant requires probable cause? Specificity of things searched and items seized? There also has to be a nexus between the alleged act and the item identified in the search warrant. Will prosecutors argue inevitable discovery? Will defense attorney’s argue exclusionary rule? Fruit of the poisonous tree? Will there be limitations placed on areas of the cellphone that can be searched and areas that cannot be searched? Can a cellphone be compartmentalized? Or will general searches of cellphones be tantamount to fishing expeditions?
Which is why the Supreme Court of the United States has a lot to consider when examining a pair of cases delving into whether the police need warrants to search the cellphones of people they arrest.
In an Associated Press release, Justice Antonin Scalia was quoted as saying, “Our rule has been that if you carry it on your person it is subject to seizure and examination”. Justice Anthony Kennedy was quoted, “We’re living in a new world. Someone arrested for a minor crime has his whole life exposed”.
The same AP release indicated several justices noted that “smartphones contain troves of private materials, including bank and medical records.” “Most people now do carry their lives on their cellphones, and that will only grow every year as young people take over the world,” Justice Elena Kagan said.
With a decision still up in the air regarding cellphone searches — prosecutors, criminal defense attorneys, law enforcement personnel and legal experts anxiously await how the Supreme Court will rule on this issue. What will the reaction be in the State of Washington under Article 1, Section 7:
When a party claims both state and federal constitutional violations, our courts should first review the State constitutional claim. State v. Afana, 169 Wash.2d 169, 176 (2010).
Article 1, Section 7, generally provides greater protection from state action than does the Fourth Amendment. State v. Eisfeldt, 163 Wash.2d 628 (2008) (citing State v. Simpson, 95 Wash.2d 170, 178 (1980)). Although similar, “ ‘the protections guaranteed by Article 1, Section 7 of the state constitution are qualitatively different from those provided by the Fourth Amendment to the United States Constitution.’ “ Id. at 634 (quoting State v. McKinney, 148 Wash.2d 20, 26 (2002)). “The Fourth Amendment protects only against ‘unreasonable searches’ by the State, leaving individuals subject to … warrantless, but reasonable searches.” Article 1, Section 7, is unconcerned with the reasonableness of a search, but instead requires a warrant before any search, whether reasonable or not. Id. at 634-35 (citing Const. art. 1, Section 7 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”)). “This creates an almost absolute bar to warrantless arrests, searches, and seizures, with only limited exceptions …” State v. Valdez, 167 Wash.2d 761, 772 (2009) (internal quotation marks and citations omitted). The distinction between article 1, section 7, and the Fourth Amendment arises because the word “reasonable” does not appear in any form in the text of article 1, section 7, as it does in the Fourth Amendment. “Understanding this significant difference between the Fourth Amendment and article 1, section 7 is vital to properly analyze the legality of any search in Washington. Id.
Our inquiry under article 1, section 7, requires a two-part analysis. Valdez, 167 Wash.2d at 772. First we must determine whether the State has intruded into a person’s private affairs. Eisfeldt, 163 Wash.2d at 636-37 (citing State v. Boland, 113 Wash.2d 571, 577 (1990)). The protections of article 1, section 7, are not “confined to the subjective privacy expectations of modern citizen[,]” unlike the Fourth Amendment and its reasonability determination. Id. at 637 (citing State v. Myrick, 102 Wash.2d 506, 511 (1984)). Instead article, section 7, protects “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” Id. (citing Myrick, 102 Wash.2d at 511). If the State has disturbed a privacy interest, the second step in our analysis asks whether the authority of law required by Article 1, Section 7 justifies the intrusion. Valdez, 167 Wash.2d at 772. This requirement is satisfied by a valid warrant, limited to a few jealously guarded exceptions, including consent. Id.
To read more about this fascinating case currently before the US Supreme Court, here’s a link to a recent article in The Oregonian on it — link.
