The Fourth Amendment prohibits law enforcement and the government from engaging in "unreasonable searches and seizures" but the Justice Department is trying to exploit an old loophole that allows a warrantless search to prevent the destruction of evidence.
The cases are among several that have tested the Constitution in the digital age. The first case, which is being heard on Tuesday, is Riley v. California. When David L. Riley was pulled over for expired registration in San Diego in 2009, police found guns in his vehicle and searched his smartphone, which contained evidence linking him to a street gang. He was arrested and convicted for attempted murder and sentenced to 15 years in prison.
In its Supreme Court brief, California claims information on cellphones "is not different in kind from wallets, address books, personal papers and other items that have long been subject to examination."
However, many argue now that smartphones carry troves of personal data including communications, banking information, health information and access to a person's social media, it needs to be protected as that information would under the Fourth Amendment.
The original judge in the second case the court will hear, United States v. Wurie, agreed with that sentiment when he threw out the evidence collected from Brima Wurie's cellphone after his call logs led to an arrest on drug and gun charges.
"Today, many Americans store their most personal ‘papers’ and ‘effects’ in electronic format on a cellphone, carried on the person," Judge Norman H. Stahl wrote for a divided three-judge panel.
Riley's lawyers say the solution to the police's problem is as simple as requiring them to put the phone in airplane mode while they wait for a warrant or to disrupt the signal with Faraday bags to prevent wiping.