Friday, January 19, 2018

Scalia has become Mr. Anti-Search

Justice Antonin Scalia, the Supreme Court's new champion of the Fourth Amendment, is likely to play a crucial role today when the court hears this year's most important search case: whether the police may routinely examine the digital contents of a cellphone confiscated during an arrest.

Under current law, officers may search a person under arrest, checking pockets and looking through a wallet or purse. The question is whether a smartphone carried by the person is also fair game.

"It's all of your personal information," said Norman Reimer, executive director of the National Association of Criminal Defense Lawyers, which opposes giving police such powers. "It's an incredible exposure of your privacy."

In the past, defense lawyers did not look first to the conservative Scalia as an ally. But in recent years, he has insisted on forbidding the kinds of "unreasonable searches" that he says would have troubled the framers of the Constitution.

Last week, he slammed the high court's majority for serving up a "freedom-destroying cocktail" in an opinion that gave police a free hand to stop cars on the highway based solely on an anonymous tip. Last year, he fired off a fierce dissent when the court ruled that police may routinely take DNA swabs from people who are arrested.

He wrote the decision that accompanied a 5-4 ruling last year banning police from using drug dogs to sniff at the front of a house and a 2012 ruling barring police from attaching a GPS tracking device to a car.

With an eye toward Scalia, lawyers in the cellphone case have carefully quoted the Fourth Amendment, which protects the "right of the people to be secure in their persons, houses, papers and effects." In the 21st century, they say, many people store their "papers and effects" on a mobile device.

"Private information used to be kept at home on paper, including your photos," said Elizabeth Wydra, counsel for the Constitutional Accountability Center. "Now they're in your pocket on a phone. With a smartphone, you can literally look into a person's home."

She noted that her phone features an app that allows her to monitor video of her home so she can keep an eye on her dogs.

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