Whether an individual is arrested on charges of organizing an international drug trafficking operation or is arrested on charges of low-level white crime, that individual has constitutional rights that must be respected by law enforcement unless the law specifically indicates otherwise. Unfortunately, the laws and policies indicating that one's constitutional rights may be infringed upon for specific purposes and under specific circumstances are not always clearly defined or consistently applied.

Because constitutional protections are meant to be treated with the utmost respect unless legal, narrow and tailored exceptions are applied to a given situation, the Supreme Court often intervenes when a law or policy potentially threatens this delicate and critically important balance. Most recently, the Supreme Court agreed to hear arguments in a pair of cases focused on the question of whether law enforcement must acquire warrants before searching the cellphones of arrested persons.

Whether individuals are arrested for state or federal crimes, on felony or misdemeanor charges, any potential evidence present in or on those individuals' cellphones should be treated with care. Because this evidence could impact the charges filed against arrested persons, the offers that prosecutors present and the outcomes of their cases, this evidence should be protected in the same ways that other evidence is.

While the Supreme Court has allowed warrantless searches of arrested persons before, it has done so primarily to foster public safety and to prevent critical evidence from being destroyed. Hopefully the Court will protect the privacy rights of arrested persons under the Fourth Amendment by compelling law enforcement to wait to search cellphones until a warrant has been obtained unless public safety or evidence destruction concerns overwhelm the arrested person's basic and fundamental protections against unreasonable search and seizure.

Source: The New York Times, "Supreme Court Will Consider Whether Police Need Warrants to Search Cellphones," Adam Liptak, Jan. 17, 2014