Читать книгу Keeping the Republic - Christine Barbour - Страница 160

Under the Fourth Amendment, there are a few exceptions to the rule that searches require warrants. Automobiles present a special case, for example, since by their nature they are likely to be gone by the time an officer appears with a warrant. Cars can be searched without warrants if the officer has probable cause to think a law has been broken, and the Court has gradually widened the scope of the search so that it can include luggage or closed containers in the car.

Modern innovations like wiretapping and electronic surveillance presented more difficult problems for the Court because, of course, they are not mentioned in the Constitution. A “search” was understood legally to require some physical trespass, and a “seizure” involved taking some tangible object. Not until the case of Katz v. United States (1967) did the Court require for the first time that a warrant be obtained before phones could be tapped,⁷⁰ although the 2001 Patriot Act makes it a good deal easier to get a warrant. In 2012 the Court ruled that a search warrant was needed in order to put a GPS tracking device on a suspect’s car.⁷¹

Physical searches of cell phones have also presented a modern conundrum for the courts, as cell phones have been considered to be part of the content of one’s pockets, which the Supreme Court had determined could be legally searched. But in 2014, writing for a unanimous Court, Chief Justice John Roberts acknowledged that “[t]he average smartphone user has installed 33 apps which together can form a revealing montage of the user’s life.” Thus, our phones are “mini-computers” that contain the same kind of information about us that our houses have traditionally contained, and just as our houses cannot be searched without a warrant, now neither can our cell phones (at least most of the time). It bears repeating, however, that warrants are not that hard to come by, so people storing information they prefer to keep private on their cell phones or computers should in general be cautious.⁷²

Analog Searches Only Although police can examine personal items in certain circumstances, the Supreme Court in 2014 ruled that the digital information stored on one’s cell phone is protected by the Fourth Amendment. If the police want to look at your data, they must get a search warrant first.

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Yet another modern area in which the Court has had to determine the legality of searches is mandatory random testing for drug or alcohol use, usually by urine or blood tests. These are arguably a very unreasonable kind of search, but the Court has tended to allow them where the violation of privacy is outweighed by a good purpose—for instance, discovering the cause of a train accident,⁷³ preventing drug use in schools,⁷⁴ or preserving public safety by requiring drug tests of train conductors and airline pilots.

Finally, in 2012 the Court held, five to four, that the Fourth Amendment is not violated by the requirement that someone arrested for a minor infraction and not suspected of concealing a weapon or drugs could nonetheless be subjected to an invasive strip search. In Florence v. Board of Chosen Freeholders of County of Burlington, the majority ruled that the plaintiff could be subjected to a strip search despite the fact that he had been arrested for something that he had not in fact done and that would not have been a crime in any case. The key issue for the Court was that the defendant was going to be held in the general jail population, and correctional officers are rightly concerned with jail security, which outweighs an individual’s privacy rights.⁷⁵