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For a New Court Case, Dial 1-800-WARRANT

Whether your phone looks like this or an iPhone, it might get taken without a warrant! Image via.

Hello readers! I know that the unseasonably cold weather might be getting you down, but I come bearing good news. This past Wednesday, March 26, the Supreme Court unanimously decided in United States v. Castleman that it is now a crime for people convicted of domestic violence to possess guns. This decision is extremely important for the safety of women (and spouses of any gender) throughout the United States, as “domestic violence is pervasive,” which Justice Sonia Sotomayor explained in her opinion written for the unanimous majority (from SCOTUSblog).

The Court reached this decision by interpreting Congress’ law on firearm prohibition for criminals, 18 U.S.C. § 922. This law did not previously apply to people convicted of certain types of domestic violence because of the phrase “use…of physical force” as found in 18 U.S.C. § 922(g)(8)(C). Section (g)(8)(C) criminalizes gun possession for individuals subject to a court order that “prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.” Until the Supreme Court’s decision in United States v. Castleman, the phrase “physical force” in section (g)(8)(C) was interpreted to mean only “violent force” enacted upon one’s spouse and not any other type of force that might be considered “less violent,” such as hair pulling, pushing, grabbing, etc.

However, the Court’s holding now interprets “physical force” to mean any type of domestic violence, even cases of domestic violence that might not seem “violent” at first glance (from SCOTUSblog). Much of the precedent for the decision in United States v. Castleman comes from the 2010 case Johnson v. United States, in which a conviction of battery was also classified as a “violent felony.” This new interpretation of “physical force” means that section (g)(8)(C) of Congress’ law on firearm prohibition for criminals applies to all people convicted of domestic violence, and it is now a crime for such individuals to possess firearms. For more information on United States v. Castleman, check out the New York Times’ writeup or the White House’s press release about the decision. With this decision, the Supreme Court has made a step in the right direction in trying to combat the widespread problem of domestic violence.

I would also like to draw your attention this week to two different cases for which the Court will hear oral arguments on April 29, 2014: United States v. Wurie and Riley v. California. Both cases involve the Fourth Amendment protection against warrantless searches and the “search incident to arrest” exception that allows police officers, after making a lawful arrest, to search without a warrant the person arrested as well as “the area immediately surrounding the person in which the person may gain possession of a weapon, in some way effect an escape, or destroy or hide evidence.” In United States v. Wurie, the warrantless search in question was of “an arrestee’s flip-top cell phone,” which the police needed “to retrieve a phone number of an incoming caller,” while in Riley v. California, “a more modern smartphone” was searched without a warrant, revealing “photographs of the suspect making gang signs” (from Virginia Lawyers Weekly, February 24 print issue). In both of these cases, the Supreme Court “will again need to apply centuries-old constitutional principles to rapidly changing technologies.”

These two cases come at an interesting time: In the wake of the exposure of NSA data collection programs, Americans are more concerned than ever with their privacy. In this day and age in which our lives seem to revolve around our cell phones — we use them for messaging, calling, business, entertainment, etc. — it is frightening to think that the government is collecting data that we previously assumed to be private. And that’s understandable; the idea of the government opening up our mail (electronic and handwritten alike) is somewhat unsavory. We as a society value our privacy, and that’s why the Fourth Amendment was enshrined in the Bill of Rights in the first place: we don’t want the government (local, state or federal) infringing upon our rights or privacy unless absolutely necessary.

And this issue of “when an invasion of privacy [is] necessary” is at the heart of both United States v. Wurie and Riley v. California. In Wurie, the question before the Supreme Court is “whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested” (from SCOTUSblog). In Riley, it is “whether evidence admitted at petitioner’s trial [i.e. the evidence taken from petitioner’s cell phone] was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights” (from SCOTUSblog). In both Wurie and Riley, the “government is urging the court [sic] to hold that searches of cell phones being carried by arrestees fall within the search-incident-to-arrest exception, primarily because of the ease with which suspects can erase data from phones before a warrant can be obtained” (from Virginia Lawyers Weekly). I can understand that argument. It is possible to retrieve deleted information from cell phones in some instances, but retrieval is not guaranteed, and officers might need to use that data immediately instead of waiting to see if it can be found.

Given my limited understanding of the “search incident to arrest” exception, which is better explained by Orin Kerr in his Washington Post column about Wurie and Riley, the government’s argument that the “search incident to arrest” exception should apply to cell phones because “the contents of which are far more susceptible to destruction than most other evidence” (from Virginia Lawyers Weekly) is valid. The “search incident to arrest” exception was created to allow police officers to find incriminating evidence in a timely fashion before lawfully arrested criminals had the time to destroy said evidence, and as I said above, it is easy to “destroy incriminating evidence” from cell phones. However, as Jessie Rossman of the American Civil Liberties Union of Boston argues in the Virginia Lawyers Weekly article, “The concern is that there are all sorts of minor offenses that can potentially lead to an arrest and the subsequent search of a cell phone…You don’t want to have police officers making minor arrests for the purposes of doing a fishing expedition of a cell phone.”

And it’s unclear how the Court will rule in both cases, especially without any oral arguments at this point to give us a glimpse into the justices’ thinking on this issue. We do know that last year they ruled against taking someone’s blood sample without a warrant in Missouri v. McNeely (examined by meSCOTUSblog and the New York Times, but that case dealt with taking a live human’s blood sample, not an inanimate cell phone’s data. (The decision was 5-4 in which Justices Scalia, Kennedy, Ginsburg, Sotomayor and Kagan made up the majority, so clearly this is a difficult issue that crosses partisan lines.) Also, the Fourth Amendment issue at stake there was the “exigent circumstances” exception, not the “search incident to arrest” exception, so it is hard to use Missouri v. McNeely as a barometer for the Court’s approach to Wurie and Riley.

As Virginia Lawyers Weekly points out, “the tension between law enforcement’s need to gather and protect evidence and individuals’ privacy interests will only grow as technologies [continue] to advance…making the application of traditional Fourth Amendment principles based on property-based searches more and more difficult.” I agree with this statement, and I wonder what’s to be done in these cases. I can see both sides of the argument in Wurie and Riley, and regardless of the decision in each case, I’m not sure that the outcome will be a good one: either a new, privacy-invading exception to the Fourth Amendment will be created, or the police won’t be able to collect the evidence they need from lawfully arrested criminals. I guess we’ll just have to wait until April 29 to better understand how the Court will construe these two cases. In the meantime, don’t do anything incriminating!

About the Author

Lena Barsky hails from Arlington, VA and is a Classics concentrator who graduated in 2014. When not translating the works of Vergil and Ovid, she spends her time keeping tabs on all things judiciary. Her primary areas of interest are the Fourteenth Amendment, questions of federalism, immigration, and combating domestic violence and sexual assault. Ruth Bader Ginsburg is an idol of hers, and her favorite opinions to read are those written by Justice Robert Jackson. Her hobbies include performing in various ensembles on the clarinet, reading anything and everything she can get her hands on, swing dancing, and fighting for women’s rights.