The Fourth Amendment of the Bill of Rights protects American citizens against "unreasonable searches and seizures." Moreover, warrants must be specific regarding search parameters, issued with probable cause and approved with judicial oversight.

This concise, single-sentence clause is the focal point of two high-profile cases that recently concluded oral arguments in front of the U.S. Supreme Court: Riley v. California and United States v. Wurie.

Both cases brought before the high court challenge the scope of the Fourth Amendment in the face of new technology — specifically as it pertains to incriminating evidence found on a suspect's cellphone. In each instance, cellphone evidence was obtained seemingly under probable cause — as the Fourth Amendment calls for — but without a warrant.

Background

In the case of Riley v. California, David Riley — a college student in San Diego at the time of the 2009 incident — was pulled over by law enforcement for driving with expired tags. During the stop, Riley's phone was seized.

On his cellphone, officers found a photo implicating him in a gang-related drive-by shooting. He was arrested and later received a sentence of 15 years to life for his participation in that crime. The California Court of Appeal, 4th District, upheld the conviction.

In United States v. Wurie, officers outside of a Boston-based convenience store believed they had witnessed a drug transaction take place in a vehicle between two individuals, and they confronted the suspects. Fred Wade was found outside of the car with two eight-balls of cocaine. Brima Wurie, the driver, was then arrested in relation to the alleged sale.

While at the police station, Wurie's cellphone rang. Law enforcement then opened the phone and traced the call. A warrant was obtained for the source of the phone call — a residence — where they found firearms, ammunition, marijuana and 215 grams cocaine.

Following his indictment by a grand jury, Wurie attempted to have the phone evidence and subsequent warrant suppressed, stating his Fourth, Sixth and 14th amendment rights had been violated.

His motion was denied initially by the court, but the U.S. Court of Appeals for the 1st Circuit reversed the decision. The court stated that some searches by police can be considered suspect when they neither prevent the destruction of evidence, nor protect the arresting officers involved.

Arguments before the court

During the oral arguments of Riley v. California, Chief Justice John Roberts pointed out to Riley's council the ambiguity of determining what should be considered protected and private. Often the line is obfuscated by the nature of the smartphone applications themselves, as well as the manner in which they are used by individuals.

"I mean, what about something like Facebook or a Twitter account?" Roberts said. "Any privacy interest in a Facebook account is at least diminished because the point is you want these things to be public and seen widely."

Chief Justice Sonia Sotomayor had a somewhat different stance, when hearing arguments in the case of United States v. Wurie.

Judith H. Mizner, an assistant federal public defender in Boston and advocate for the respondent, stated there was "nothing particularly private about the ringing" of the phone in plain view at the station. Sotomayor countered, "I was thinking in terms of reasonable expectation of privacy. Most people don't pick up other people's phones to answer them unless the phone is lost. And then you pray the person who found it answers it."

Her statement elicited quiet laughter across the courtroom.

It was Chief Justice Elena Kagan, however, who got to the heart of what is being argued in both cases, while addressing Edward C. Dumont, an advocate for the respondent in Riley v. California.

"Are you saying, essentially, that nobody has any expectation of privacy, or that somebody has a dramatically reduced expectation of privacy in anything that the person actually wants to keep on them at all times?" Kagan asked. "In other words, one has to keep one's cellphone at home to have an expectation of privacy in it."

To which Dumont replied, "No, we're not saying that at all. But what we are saying is that people do make choices, and those choices have consequences."

Finding middle ground

Due to a "search incident to arrest" exception precedent set by United States v. Robinson in 1973 — the opinion of which found in favor of law enforcement — similar searches have been conducted in modern contexts, including the cases of Riley and Wurie.

Opinions have yet to be handed down in either case, though there is speculation that some sort of "middle ground rule" may be established that allows cellphone searches under circumstances in the absence of a warrant. Defining what that middle ground is, exactly, could be rather difficult.

In Riley v. California, Roberts questioned whether or not police could be "entitled to search those apps that, in fact, don't have an air of privacy about them?"

Jeffrey L. Fisher, for the petitioner, stated succinctly in response, "I think that would be extraordinarily difficult to administer that rule."

No matter the outcome, one can be sure the opinions of these cases will have far-reaching implications regarding searches of suspects by law enforcement. This is especially true as technology continues to evolve as a virtual extension of someone's life — often including personal information that was once typically afforded an expectation of privacy in the analog mediums of yesteryear.