The United States Supreme Court will be addressing this question soon: Does the warrantless search and seizure of cell phone records, which include the location and movements of cell phone users, violate the Fourth Amendment?
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. That is, any time the police want to intrude upon you or your possessions, the Constitution requires that the activity be “reasonable”. That standard is generally satisfied when the police obtain a warrant, but many searches and seizures occur without one. For example, the police can stop your car without a warrant if they have “reasonable suspicion” that you have violated the law.
In the case of Carpenter v. United States, police arrested four men in connection with a series of armed robberies. One of the men confessed to the crimes and gave the FBI his cell phone number and the numbers of the other participants. The FBI used this information to apply for three orders from magistrate judges to obtain records for each of the phone numbers, which included the date and time of calls, and the approximate location where calls began and ended based on their connections to cell towers – “cell site” information.
Based on the cell-site evidence, the government charged Timothy Carpenter with aiding and abetting robbery. Carpenter moved to suppress (throw out) the government’s cell-site evidence on Fourth Amendment grounds, arguing that the FBI needed a warrant based on probable cause to obtain the records. Two Courts have denied Carpenter’s motion to suppress, and now the Supreme Court will weigh in.
Although the Supreme Court has held that police need a warrant to search the cellphone of a person that has been arrested, this is different — it’s not what’s in the phone that’s at stake, it’s the transfer of data to a third party (here a phone service provider) that could be handed over to police without judicial oversight. Police could then conceivably track a person’s whereabouts by gathering information that is transmitted by their electronic devices, including cell phones, iPads and personal computers — a scary thought! We can only hope that the Court will agree.