“Then and there the child of Independence was born” (Hint: it wasn’t about taxes)
by digby
I wrote about a California court decision allowing police to search the cell phone of any suspect who’se been arrested. I brought up the fact that cell phones aren’t just phones these days, they are a repository of all of our communications with access to our browsing history, emails, pictures an documents. It’s an extremely intrusive search and to do it without probably cause is really quite shocking.
This blog post by Brianne Gorod at the Constitutional Accountability Center gives some historical context explaining why it’s also an egregious violation of the Fourth Amerndment:
The Fourth Amendment broadly protects against “unreasonable searches and seizures,” and also provides that “no Warrants shall issue” unless they “particularly describ[e] the place to be searched, and the persons or things to be seized.” When the Framers adopted this Amendment, they were responding, in large part, to the British use of “general warrants” and “writs of assistance.” These warrants and writs lacked any specificity about the people or items to be searched and were not predicated on any individualized suspicion; essentially unlimited in scope, they allowed the officers executing them virtually unfettered discretion to engage in broad searches of a person’s home and the personal papers and effects in that home.
The use of these warrants was the subject of great opposition on the eve of the American Revolution. In a high profile case in 1761, a group of Boston merchants challenged the use of general warrants. Their attorney, James Otis, decried them as “the worst instrument of arbitrary power” and warned that they “place[d] the liberty of every man in the hands of every petty officer.” Indeed, their use was one of the grievances that prompted the call for independence from British rule. John Adams later remarked that Otis’s attack on the use of general warrants “was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” And as the Nation’s new Constitution was being debated, there were calls for an explicit prohibition on the use of such warrants. The uniquely detailed text of the Fourth Amendment was the result. It not only enshrined in our Nation’s charter a specific prohibition against general warrants, but it also reflected the Framers’ more general concern that government officers not be able to search a person’s home, papers, and effects in the absence of some individualized, justified suspicion that a specific search would produce evidence of wrongdoing. Stated simply, the Framers wanted to strip the government of the arbitrary power to rifle through a person’s belongings in the hope of finding something incriminating.
The practice permitted by the California courts (and others) violates this fundamental Fourth Amendment precept. Although the police may sometimes conduct warrantless searches after a lawful arrest, the traditional justifications for such searches were not present in Riley’s case—Riley’s cell phone had been taken away from him upon his arrest, thus eliminating any concern about destruction of evidence, and the text messages, emails, photos, and other digital contents of the phone could not have posed any threat, let alone an imminent one, to the arresting officers’ safety. To the contrary, the police acknowledged that they had dug through “a lot of stuff” on the phone specifically “looking for evidence.” This is precisely the type of search for which the Constitution demands a warrant.
Limits on the government’s power to search your home and personal communications without specific suspicion of wrongdoing and authorization by a judge is fundamental to the American definition of liberty. It goes all the way back to the beginning. It’s not an afterthought. This vacuous notion that “technology” somehow changes that basic principle must be challenged.
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