The Supreme Court of the United States agreed this week to
hear a case dealing with the constitutionality of warrantless cell phone searches. Here are articles from the Washington
, the Volokh
, and Wired
on the issue.
I am fascinated by the intricacies of the Fourth
Amendment. One of the things about
this area of the law that I find especially interesting is that while there are
a number of exceptions and countless applications of Fourth Amendment search
and seizure rights, the basic principles are universally applicable. Courts follow a similar method of
analysis for cases involving something as simple and tangible as a pack of
cigarettes, and something as complex and abstract as so-called metadata.
so many legal issues, it depends.
The Supreme Court of the United States has not ruled on this specific
issue, but other federal and state appellate courts have ruled on the
issue. A few months ago, the
United States Department of Justice is asking that the Supreme Court weigh
in. Here is anarticle
on the Justice Department’s request.
As you will note while reading this article, the case at issue involved
a flip phone, not a smart phone.
It is unclear whether the Supreme Court would seek to expand the inquiry
to include smart phones and the massive amount of information that they often
An increasing number of states, including California, allow
some form of Marijuana possession, either for medicinal (California) or recreational
(Colorado and Washington) use. As a result of these changes, law
enforcement officials are working to devise new methods of determining whether
someone is driving under the influence of marijuana. Here is an article
on Colorado's attempts at addressing the issue.
Often times, a police officer will ask permission to search
something. Although people have a
right to refuse, they often agree and this can sometimes result in the officer
locating something unlawful, such as a controlled substance or evidence of a
crime. If this occurs, you should
consult an attorney to determine whether your consent was sufficient under the
is a specifically established exception to the Fourth Amendment’s warrant
requirement. (Schneckloth v. Bustamonte
Yes, if you are lawfully under arrest.
Police may, incident to a lawful
custodial arrest, search the person of a defendant and the area immediately
surrounding him in order to remove weapons and prevent the concealment of
evidence. (People v. Gutierrez(1984)
163 Cal.App.3d 332, 335citing Chimel v.
California(1969) 395 U.S. 752, 763.) An officer may search an individual incident to his lawful
arrest regardless of the offense for which the arrest is made. (United
States v. Robinson(1973) 414 U.
Probable cause exists if the facts
known to the arresting officer would lead a person of ordinary care and
prudence to believe and conscientiously entertain an honest and strong
suspicion that the person is guilty of a crime. (People v. Guajardo(1994) 23 Cal.App.4th 1738, 1742.) In the vehicle context, a warrantless
search is permissible where there is probable cause. (See People v.
Strasburg(2007) 148 Cal.App.4th 1052, 1059.) If an officer has probable cause to believe that an
automobile contains contraband or evidence of a crime, he may perform a
warrantless search of the vehicle for that contraband or evidence.
Generally, an investigatory
detention is unconstitutional if it is “‘extended beyond what is reasonably
necessary under the circumstances [that] made its initiation permissible.’” (People v. McGaughran (1979) 25 Cal.3d 577, 586.) If a detention becomes unreasonable in
length, it essentially becomes an arrest that must be supported by probable
cause.“ (See People v. Gomez (2004) 117 Cal.App.4th 531, 538.)
If you are approached by a police officer and a conversation
starts, does that mean you are detained?
The Fourth Amendment does not
prohibit officers from asking people questions to people on the streets. (People v. Bennett(1998) 68 Cal.App.4th
396, 402.) During a consensual
encounter, a police officer may ask a citizen to remove his hands from his
pocketsand inquire into the
contents of his pockets. (People v. Ross
When is it legal for a police officer to stop you in your
car on the street? A police
officer may detain a person if he or she has a reasonable, articulable
suspicion that the person has engaged in or about to engage in criminal
activity. (Terry v. Ohio(1968) 392
U.S. 1, 21.) Reasonable suspicion
is shown where “the detaining officer can point to specific articulable facts
that, considered in light of the totality of the circumstances, provides some
objective manifestation that the person detained may be involved in criminal