Privacy Issues in the Workplace

In one case, the content of the seized smartphone revealed text messages with possible gang affiliations, videos of young men sparring while someone yelled gang words, and a photograph of the arrestee in front of a car suspected to have been involved in a shooting a few weeks earlier. The arrestee was linked to the prior shooting based upon the information found on his cell phone. In the other case, the flip phone seized from the arrestee repeatedly received calls from a source identified as “my house” on the phone’s outside screen. When the officers opened the phone, they saw a photograph of a woman with a baby set as the phone’s wall paper. The officers were able to trace the phone number of the caller to an apartment building where, from the picture of the woman on the phone, they were able to locate the place where the arrestee lived. After securing the apartment and obtaining a warrant, they found and seized cash, a large quantity of drugs, and a firearm with ammunition. Both arrestees sought to suppress the evidence uncovered through the search of their cell phones on the grounds of an unlawful search and seizure under the Fourth Amendment. The U.S. Supreme Court agreed with the arrestees, finding that the warrantless search of their cell phones incident to their arrests was not reasonable. In evaluating the reasonableness of the warrantless search incident to the arrest, the Court declined to apply the rules previously applicable to the search of physical objects found on or near the arrestee during his or her arrest. The Court ruled that cell phones differ both quantitatively and qualitatively from the typical physical object that might be found on an arrestee during an arrest. Of particular note was the immense storage capacity of a cell phone, which permitted individuals to carry around vast quantities of sensitive personal information that they would not have been able to carry on their person separately without a cell phone. Thus, rules that previously permitted the warrantless search of physical items incident to the arrest and that resulted in searches that were narrow in scope due to the physical limitations of the items being searched, would not apply to cell phones. Just as an officer would need a search warrant to search a trunk found incident to an arrest, the officers would also need a search warrant to search a cell phone, which would require a trunk to hold the same number of physical pieces of information found on the cell phone. The Court also rejected the arguments of the respondents that reasons of safety and the need to prevent destruction of evidence permitted a warrantless search of the cell phone. Respondents did not offer evidence based upon actual experience that arresting officers faced harm at the time of the arrest unless they searched the cell phone without a warrant. With respect to arguments on the destruction of evidence, the Court found that steps could be easily taken prior to an arrest to remotely wipe or encrypt data and prevent officers from accessing the phone. In the event the phone was unlocked and accessible to the officer at

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 134