Still in flux?

There should be a reassessment and there should be “amended” rules for how cell phones, tablets, and computers are searched.

Accessibility to computers and cellphones created an extraordinary change in how we communicate, and in particular how we retain and store private information about those communications. Along with the nature of the communications, the ability to retrieve that private information has also dramatically changed. No longer do we put a paper copy of a letter in a file folder and cabinet in our home. Often we carry a digital copies of that letter in our pocket, a cellphone holster, a tablet, and a laptop computer.

In the first of several posts Orin Kerr addresses the Supremes on cellphones: “The need for computer-specific Fourth Amendment rules in the cell phone search cases.”

The cell phone search cases currently pending at the Supreme Court, Wurie and Riley, offer the Justices three basic choices for when the Fourth Amendment allows a warrantless search of a cell phone at the time of arrest under the search incident to arrest exception to the warrant requirement. The answer could be “always,” underUnited States v. Robinson; “sometimes,” primarily under Arizona v. Gant; or “never,” under Chimel v. California. In this post, I want to explain why I think the answer shouldn’t be “always.” In my next post, I’ll explain why I think that both “sometimes” and “never” are plausible answers, and I’ll try to mark out the parameters of the choice between them.

He is right – of course- that “always” should never be the answer, and that, “the Court should recognize that Fourth Amendment jurisprudence should in some cases adopt computer-specific rules.”