Cell Phones and the Fourth Amendment

In a recent California Supreme Court decision, Cops in this state no longer need a warrant to confiscate the cell phone of whomever they detain and use that data as evidence against that detainee.

I believe this practice of warrantless cell phone searches and siezures is unconstitutional. What do you think?

Here are a few websites I found discussing the specifics on this story:

http://reason.com/blog/2011/01/05/california-supreme-court-cell,

http://www.sfexaminer.com/news/california/2011/01/court-upholds-warrantless-search-text-messages-drug-arrest,

and at

http://btlj.org/2011/02/23/people-v-diaz-is-your-iphone-constitutionally-protected/.

I need to study this case further to make sure I am not misunderstanding it. But as I read the constitution, it seems pretty clear to me. Unfortunately, the courts have been applying a more flexible interpretation of the Constitution. The fourth amendment to the United States Constitution simply states,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In the following video, the U.S. Congress is debating the so-called “Patriot Act.” Notice that this video could leave one to believe that it is a “left” versus “right” issue. But people on both sides of the isle are in both in agreement and in disagreement with the act. It is just one piece of the argument about the fourth amendment:


In opposition to the “Patriot Act,” Dr. Ron Paul, the Republican Representative from Texas, defends the fourth amendment:

It is my opinion that the whole idea of sacrificing liberty for security is a “slippery slope.” This business of searching our cell phones without a warrant is just one example of the avalanche of human rights violations that is beginning with “Patriot Act” mentality.

One well-known paraphrase of Benjamin Franklin’s Poor Richard’s Almanack (1738) goes something like this:

Any society that would give up a little liberty to gain a little security deserves neither liberty nor security and will lose both.

This next video discusses how to “flex your rights,” especially the fourth amendment, when stopped by a police officer:

28 Responses to Cell Phones and the Fourth Amendment

  1. Whether people agree to this or not, it’s the fact of this Amendment being constitutional. It is part of our freedom as Americans to hold our privacy to ourselves, including our cell phones. The government should not have the right to invade that privacy just because they are the GOVERNMENT. Don’t make the law in the constitutional rights if not even the government could follow it.

  2. This was very interesting because we all forget our 4th Amendment right. We all forget that we do have a voice and we can say to a person yes you can search me or no you cant. We should always have the opportunity to say yes or no. These videos were just great.

  3. I believe the unwarrented act of confiscating phones is unconsitutional; however, in our society today, who is embracing their privacy?

    It seems that everyone is “putting their life out there” with facebook and other social networking sites. Updating their mundane or possibly interesting lives.

    I feel somewhat indifferent now that I stated that.

  4. It is definitely a violation of privacy. I understand that they feel it is necessary because of the scared caused by the terrorist attack, but in the end it is really unconstitutional. Though they might be able to catch someone of committing a crime, they are violating the rights of so many more people who are doing nothing wrong.

  5. I think it was wrong for the officer to confiscate the cell phone without a warrant. We have our rights own for our belonging. It’s invading our privacy.

  6. i think that this is wrong, there is a lot of personal stuff in peoples cell phones now a days…a warrant should still be required to search a person’s cell phone.

  7. Yes indeed folks the patriot act has a tendancy to lean toward the govermts ways of abusing your rights for the cause of homeland security. Let us remenber americans didnt cause the world trade center tragedy. When it comes to american terrorist, well they should be identified and the patriot act can be put in use no problem whatsoever, but not the general public.

  8. Ok since when have cell phones been bothering the government? They’re just trying to find more to get money to make up for their previous withdraw.

  9. I agree that the police should not be able to confiscate our phones. The government is starting to take more and more of our rights away.

  10. it is a shame that government is using the PATRIOT Act to step on our rights. it is not about the cell phone, it is our civil rights which is been abused.

  11. I can see why they, the police, would want to do this. It makes sense, as they can find more incriminating evidence against the detainee. But is it really worth it? To go against our constitution just so we can have some sense of security? The courts need to reconsider this. Especially these are detainees involved, and not every detainee is a “harden criminal.” I can see the police eventually abusing this power.

  12. This is ridiculous, I agree with MelT it does seems as if people are losing more and more rights daily to laws like this that invades a persons privacy. And yes, soon enough the government will be able to do as they please. I do agree with Dr. Paul when he claims that we as a nation have let the 9/11 attacks take us down the wrong path, many have allowed fear to empower and take over control. In effect oblivious laws such as this one are proposed.

  13. Personally i have had several encounters with police. From them trying to search my car to my house. I personally can’t stand most of them because of there attitude and the way they try to intimidate. But like the guy said in the video, keep your cool and don’t let them get into your head.

  14. i don’t think the authorities have to right to take our cell phones away just because it looks suspicious i think in order to use cell phones as evidence they would need a warrant

  15. I would not feel comfortable if a police officer had the right to take away my cell phone without a warrant. I find it to be absolutely unfair.I am in shock! It seems as if we are slowly but surely losing our privacy.

  16. I don’t see why its necessary to take someones phone without reason. I wouldnt feel comfortable with a police officer taking my phone just because i fit a category

  17. Wow, this video about search and seizure sounds good but has anyone ever actually been put in this position. It is easier said than done. At the same time if you are not rollin dirty then it doesn’t matter anyway.

  18. For a conservative I really like Ron Paul, and the point he argues is one that should be expressed more clearly when we partake of new legislation in the name of security. i also agree with Mr. Paul when he claims that we as a nation have let the 9/11 attacks take us down the wrong path. For 10 years politicians have beat that drum to justify irresponsible spending and bad politics, as a result we are now digging ourselves out of a whole.

  19. Maybe confiscating a phone should be allowed for extreme cases; however, who interprets how extreme? It doesn’t seem fair to me, but at the same time that’s how most of us communicate nowadays. It’s hard to choose since both sides have valid points.

  20. I can see both sides of this argument. Although I have split views, I do believe that people should voice their opinions over there liberties before they are slowly taken away. It reminds be of Pastor Martin Niemöller famous quote, “First the came…” If a country does not stand up against a government to preserve their rights when something is not directly effecting them. Before they know it, their own rights will being to be directly challenged.

  21. Thats crap! The 4th ammendment gives us pesonal freedom to free speech, how can they even debate this. i don’t see how this could make america any safer. what i say to my wife or my friend over the phone is my business only.

  22. This is just wrong, People are losing more and more rights daily to laws like this that invades a persons privacy. soon enough the government will be able to do whatever they feel like and will shift towards a monarchy type empire

  23. There are plenty of benefits when it comes to police confiscating cell phones without a warrant, but this quote, “any society that would give up a little liberty to gain a little security deserves neither liberty nor security and will lose both” by Benjamin Franklin really says a lot.

  24. I think that cell phones attached to oneself should have the same rights as someones house. They should not be able to search though your cell phone without a warrant or probable cause. Its just ridiculous how much our rights have been lessening in the past years, with searches of cars and houses without warrants, no right to bear arms and now this? Im getting fed up with these violations.

  25. It’s impossible to debate this in a couple of sentences. People attempt to support their cause by using the word terriosm (on one side) and constitution (on the other). There is a middle ground.

  26. I dont understand why the governement is yaking away the freedoms we have that make our country so strong and great. It is unconstitutional. the government is taking away our rights, first stating small then getting more serious and bigger. pretty soon they wil have cameras in our homes. i think its time for a revolution.

  27. This is crazy! You would that you would actually have some sort of privacy to what is yours but in this day in age it seems that we have no privacy at all. But on the other hand, I do see the purpose behind it because of the crazy stuff that goes on in this world.

  28. Well in this case its a catch twenty two, because texting messages is the super trend of communication of today. and there is alot of slang to go with it. and if I look like a “suspect” and get pulled over and fit a certain description does that make me a suspect just because I texted something? I think not. This should be well thought out.

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