Friday, March 28, 2014

Can you stop police from searching your smartphone without a warrant?

By Jim Babka


We need your help to file an important amicus brief with the Supreme Court.


Can the police search your property, just because they've arrested you? The Fourth Amendment would appear to outlaw such searches, pending a warrant. But the Court has allowed two exceptions, permitting police to search for...

  • weapons

  • evidence that could be destroyed by you

But do these exceptions extend to the CONTENTS of your smartphone?

It’s one thing to temporarily seize a smartphone to prevent its contents from being tampered with or destroyed. It’s quite another thing to actually start examining that contents without a warrant.

The Supreme Court is reviewing two cases to determine the Constitutionality of smartphone searches...

  • In United States v. Wurie, the U.S. Court of Appeals for the First Circuit ruled against such searches.

  • In Riley v. California, the California Court of Appeals upheld a prior ruling allowing such searches.

Our attorneys think these cases have been argued incorrectly. Too much weight has been given to what the Courts have said about the Fourth Amendment, and too little to what the Constitution itself requires. We want to file a brief correcting this mistake, because...

The current Court has shown itself open to such an approach, as demonstrated by the ruling in United States v. Jones (Antoine Jones) case, for which we filed an earlier brief making a similar argument. Remember...

Antoine Jones was a big victory for our side -- probably our biggest, most obvious victory to date. Following our lead, the Supreme Court re-established the Fourth Amendment as a protection for property rights. This was a big deal! For 44 years, the Court had interpreted the Fourth in terms of a shrinking right to privacy.

A follow-up ruling last year in Florida vs. Jardines continued our property rights trend. Now we have a new chance to strengthen the property rights basis of the Fourth Amendment. BUT...

As in Antoine Jones, this may NOT be done unless WE do it. So far, all the litigants in Wurie and Riley have argued on a privacy basis, NOT a property rights basis. So if we don't make the property rights argument, it probably won't get made!

And the Court may start to drift back to the privacy approach, losing us ground we won at great cost.

Our brief would be filed in the Wurie case, with reference to the Riley case as appropriate. Can you help us fund this case by making a contribution to the Downsize DC Foundation? Such contributions are tax deductible if you itemize deductions. You can contribute here.

Thank you,

Jim Babka


Downsize DC Foundation