No Longer Accepting Exceptions: Exceptions to the Exclusionary Rule of the Fourth Amendment Are Unconstitutional as Applied to Smartphones

By Mondell, Douglas A. | The Journal of High Technology Law, January 2017 | Go to article overview

No Longer Accepting Exceptions: Exceptions to the Exclusionary Rule of the Fourth Amendment Are Unconstitutional as Applied to Smartphones


Mondell, Douglas A., The Journal of High Technology Law


I. Introduction

"[The] 'exclusionary rule'... keeps courts from being 'made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.'" (1) This excerpt of Justice Sotomayor's stinging dissent in Utah v. Strieff stems, in part, from the Supreme Court's long history of limiting the corrective power of the exclusionary rule and the protections that the Founding Fathers believed the Fourth Amendment would provide to the citizens of this country. (2) Americans are to be afforded a reasonable expectation of privacy, free from government intrusion, unless and until law enforcement has reasonable suspicion that a crime has been, is being, or will be committed. (3) This is an important issue for many Americans who place a high value on their privacy. (4) One of the most private personal effects an American carries with them is their smartphone, (5) which can contain pictures, videos, text messages, emails, voicemails, banking information, etc. (6) This vast collection of private information is literally in the hands of people all across the United States because Americans who do not own a smartphone are now the minority. (7)

While the connection between the Fourth Amendment of the United States Constitution and smartphones may not be explicit, most people in the United States are now using a device that stores gigabyte upon gigabyte of their private information. (8) All of this information, contained on a smartphone, can be found on someone's person at any given time--even during arrest. (9) Near the time of an arrest, law enforcement should obtain a warrant to search an arrestees' smartphone, but even if that warrant turns out to be defective, the evidence discovered could, nevertheless, be admitted in a court of law. (10)

While this so-called good faith exception (11) to the exclusionary rule, along with the other exclusionary rule exceptions, seem to be violations of the Fourth Amendment, the Supreme Court sanctioned these exceptions as constitutional in numerous decisions. (12) The problem with this is that a majority of these Fourth Amendment cases predate smartphones. (13) Where the evidence that can be found from an unwarranted search of a home or a car is limited and quantifiable, the amount of information available from a search of a smartphone is endless. Section II of this Note will discuss the way that the Fourth Amendment has morphed from protecting the rights that it originally intended to protect into a doctrine with exceptions never intended by the Founding Fathers. (14) Then, Section III will describe the reasons why exceptions to the exclusionary rule were instituted and the detriment these exceptions can bring to smartphone users. (15) Section IV, will argue that, due to this significantly disproportionate difference in information available, the good faith exception, and other exceptions to the exclusionary rule, are unconstitutional when applied to searches of smartphones. (16) Finally, Section V will conclude why a number of the exceptions to the exclusionary rule are unconstitutional when illegal searches are made of smartphones. (17)

II. History

Many courts, and much of the legal community, seem to have mistaken the Founding Fathers' reason for including the Fourth Amendment in the Bill of Rights. (18) In the years leading up to the American Revolution, warrants were "general warrants" that gave law enforcement far too much power. (19) These general warrants gave the police free rein to conduct any search and seizure when they had the slightest belief that criminal conduct was afoot. (20) The use of general warrants created much discontent among colonial Americans and was the reason behind the inclusion of the Fourth Amendment in the Constitution. (21) However, since the ratification of the Constitution, the Supreme Court's interpretation of the protections guaranteed by the Fourth Amendment has changed many times. …

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