At the Constitutional Accountability Center, Brianne Gorod: The Supreme Court Cases Everyone with a Cell Phone Should Be Watching (previewing Riley v. California and United States v. Wurie, to be argued April 29). On the originalist perspective, she writes:
The Fourth Amendment protects people’s “papers” and “effects” from “unreasonable searches,” and the contents of our phones are the modern version of “papers and effects.” The Fourth Amendment also provides that warrants authorizing searches must, among other things, “particularly describ[e] the place to be searched, and the persons or things to be seized,” and it was adopted to prevent the government from searching people’s papers and effects in the absence of individualized, justified suspicion that a specific search would produce evidence of wrongdoing. Stated simply, the Framers wanted to strip the government of the arbitrary power to rifle through a person’s belongings in the hope of finding something incriminating. Thus, the searches at issue in these cases were exactly the sort of generalized searches that the Framers abhorred—and adopted the Fourth Amendment to prevent.
The two cases are probably the most important of the April arguments and the most interesting on originalist grounds. As I've mentioned a couple of times, the key scholarship on this subject is from my colleague Don Dripps. (And see here and here for more on the issue from the Constitutional Accountability Center).
The application of original meaning to new technology is obviously important here, but I doubt that it's all that difficult, at least in theory. I agree that "the contents of our phones are the modern version of "papers and effects,'” so the question should be whether, if Riley and Wurie were holding a big stack of papers instead of a phone, could the police look through it? (I'm not venturing an opinion on the answer).
Posted at 6:04 AM