Editorial: Cell Phone Searches; Warrants Should Be Required

It is a little puzzling that courts across the country are divided on the question of whether police need a warrant to search the cell phones of suspects whom they have arrested.

It is becoming ever clearer that these phones are the modern equivalent of the filing cabinet, photo album, personal diary, travel itinerary, bank statement and more rolled into one highly portable electronic device.

As such, they constitute a potential treasure trove of useful information for criminal investigators, and the urge to examine their contents is entirely understandable. It seems equally clear to us that warrants ought to be required before that urge is satisfied.

But as staff writer Mark Davis reported earlier this week, courts in Vermont and New Hampshire have yet to provide definitive guidance on the question, which is not merely theoretical. Earlier this fall, for example, a Hartford police officer examined without a warrant the cell phone of a suspect whom he had arrested in a railroad vandalism case, and discovered photos of several train cars that had been “tagged” with graffiti. More than a week later, police obtained a search warrant and found on the phone more than 200 photographs of vandalized railroad cars and bridges, along with potentially incriminating text messages, according to court records.

Judges in other states have reached differing conclusions on whether a warrant is needed for such searches. Judges in Rhode Island and Ohio have ruled that they are required, as has a federal judge in California. State courts in California, Washington and Colorado think not. The issue is not addressed definitively in federal law, either, according to an article in The New York Times last month.

An expert interviewed by the Times suggested that this was an instance of technology running ahead of the law and the Constitution, because neither could have anticipated how much information can be stored in cell phones — “your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff.”

We would argue that the genius of the Constitution is that although those who drafted it could not have imagined a world in which the cell phone and its amazing capabilities existed, their firm belief that individuals need to be protected from unwarranted government intrusion rendered moot the need to anticipate such technological advance.

In fact, the plain language of the Fourth Amendment covers the issue quite nicely: “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.”

To be sure, the form that “papers and effects” take in the 21st century could not have been anticipated in an 18th century document, but is there any doubt that the kind of private, intimate detail of individual life recorded by a cell phone is precisely the sort of thing that the Founders sought to protect?