Can Police Search Cellphone Without Warrant?

Justices may weigh in on case that could revise 40-year-old rules.

……………………………………………………………………………………….

Mark Sherman, The Associated Press

WASHINGTON — The Supreme Court decided 40 years ago that police don’t need a search warrant to look through anything a person is carrying when arrested. But that was long before smartphones gave people the ability to take with them the equivalent of millions of pages of documents or thousands of photographs.

In a new clash over technology and privacy, the court is being asked to resolve divisions among federal and state courts over whether the old rules should still apply in the digital age.

The justices could say as early as Friday whether they will hear appeals involving warrantless cellphone searches that led to criminal convictions and lengthy prison terms.

There are parallels to other cases making their way through the federal courts, including the much-publicized ones that challenge the massive collection without warrants of telephone records by the National Security Agency. Though the details and scale are far different — searching a single phone for evidence that could send someone to jail vs. gathering huge amounts of data, almost all of which will never be used — in both situations the government is relying on Supreme Court decisions from the 1970s, when most households still had rotary-dial telephones.

Under the Fourth Amendment, police generally need a warrant before they can conduct a search. The warrant must be based on “probable cause,” evidence that a crime has been committed, the Constitution says.

But in the early1970s, the Supreme Court carved out exceptions for officers dealing with people they have arrested. The court was trying to set clear rules that allowed police to look for concealed weapons and prevent the destruction of evidence. Briefcases, wallets, purses and crumpled cigarette packs all are fair game if they are being carried by a suspect or within the person’s immediate control.

There is growing division in state and federal courts over whether cellphones deserve special protection. At least six courts have allowed warrantless searches, and at least three have not, said Stanford University’s Jeffrey Fisher, representing a California defendant whose case is being considered by the Supreme Court.