Cell Phones and the 4th Amendment

The Supreme Court will hear arguments this week as to whether the police should be required to obtain a search warrant prior to searching the cell phone of a person under arrest. Much will likely depend upon whether the arrestee has a reasonable expectation of privacy in the data contained within the phone. And similar issues are likely to show up on the MBE.

To have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the item seized. Whether a person has a legitimate expectation of privacy has traditionally been determined by examining the totality of the circumstances, including whether the item seized was owned by the person from whom it was seized. The Supreme Court has ruled that individuals generally maintain a reasonable expectation of privacy in their bodies, clothing, and personal belongings. In contrast, no expectation of privacy is maintained for property and personal effects held open to the public.

There are two components to analyze: the first is subjective, and the second objective. Specifically, it must be determined whether the person claiming a Fourth Amendment violation subjectively expected that the item seized, and the information therein, would remain private. But a subjective expectation of privacy is not enough; it's also required that the expectation of privacy held by that person be objectively reasonable.

I'm probably better at assisting students to prepare for the bar exam than I am at predicting Supreme Court cases, but I'll go ahead and predict that a cell phone will be deemed an item of property that can be searched only upon obtaining a valid warrant from a neutral magistrate who grants permission to conduct the search.