CrimProf Blog

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

Thursday, July 30, 2015

Wong on Warrantless Cell Phone Searches

Marco Y. Wong has posted United States v Camou: Warrantless Cell Phone Searches after Riley v California (Legal Issues Journal, Vol. 3, Issue 2, pp. 117-135, 2015) on SSRN. Here is the abstract:

This Comment examines how the Fourth Amendment applies to warrantless cell phone searches in United States v Camou, and questions whether the Ninth Circuit’s ultimate position is desirable. Last year, in Riley v California, the United States Supreme Court held that a police officer should generally get a warrant before searching a defendant’s cell phone incident to her arrest. It explained that cell phone searches may be very intrusive of one’s privacy because of the amount of information that cell phones can contain, as well as their pervasiveness in our lives. The Camou court was challenged with what this insight meant for other exceptions to the Fourth Amendment’s traditional warrant requirement. 



After discussing, in Part I, Camou’s holding that evidence was improperly obtained and had to be excluded, Part II examines Camou’s analyses of the exigency and automobile exceptions to the traditional warrant requirement, and good faith exception to the Fourth Amendment exclusionary rule. It suggests, in Part III, that the Supreme Court should reject exigency searches of cell phones altogether, endorse but further elaborate Camou’s holding that cell phones are non-containers under the automobile exception, and reject its understanding of good faith. We should expand defendants’ rights by requiring police to get a warrant in all cell phone searches — since it is quick and easy to do so — but constrain their remedy to include evidence where an officer relies on her own objectively reasonable mistakes or binding court precedent — since the exclusionary rule’s goal is to deter police misconduct.

https://lawprofessors.typepad.com/crimprof_blog/2015/07/wong-on-warrantless-cell-phone-searches.html

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Comments

The "exclusionary goal" is not just to deter police misconduct. Misconduct of a cop is when the act is wrong. What is wrong here is when a human being's privacy is invaded, his body is searched, his underwear examined, his cell phone examined, his brief case examined and searched. The right of privacy is one aspect of this and it is grounded in several aspects of the Constitution.

What we need to do in order to put this into context is consider the court review if a cop came into a donut shop to get his six times daily donut and is stopped by the owner of the shop and ordered to empty his pockets and put his gun on the floor. The shop owner is carrying a rifle but not pointing it at cop guy. The shop owner examines the cop's credentials in his wallet and determines that this is a real cop with a gun who came into his shop. Was the shop owner wrong or "illegal" when he pulled the gun and searched the person?
Good law school discussion boys and girls. Perhaps a seminar on privacy and the right of a person to search another person.

Posted by: Liberty1st | Jul 31, 2015 9:36:52 AM

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