CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, February 28, 2014

Lamparello & MacLean on Cell Phone Searches

Adam Lamparello and Charles E. MacLean (Indiana Tech -- Law School and Indiana Tech Law School) have posted Back to the Future: The Constitution Requires Reasonableness and Particularity — Introducing the 'Seize But Don't Search' Doctrine on SSRN. Here is the abstract:

Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.

When do present-day circumstances — the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent…simply does not apply? The answer, unfortunately for the Government, is now.

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