Wrong Number: The Limitless Limited Search

The history of liberty is a history of limitations on governmental power, not the increase of it.      - Woodrow Wilson

We forget history at our peril.  And, so, the Supreme Judicial Court has decided, in Commonwealth v. Berry and  Commonwealth v. Phifer that when a cellphone is seized incident to lawful arrest, the police can, without violating the Massachusetts Constitution, search that phone for recent calls.  It is fair to proclaim that the Framers could not have anticipated the modern world; it is not fair to proclaim that they would have allowed government - without a warrant - to know or obtain information on who speaks to whom at what time on any given day.

Historically, searches have a way of sidestepping the law and then creeping into jurisprudence as though they had always been legitimate. Indeed, checking phone logs without a warrant bears a striking resemblance to Star Chamber practices of seizing and prying onto personal papers later used in prosecution.  In 1765, Lord Camden outlawed the practice as violative both of the principle against self incrimination and the repugnance of general warrants.

Not just nosy searches and seizures but also the proposed prosecutorial value of their fruits influenced early Americans as they pondered the Fourth Amendment.  In Warden, Maryland Penitentiary v. Hayden, Justice Douglas made this connection and noted,

Our question is whether the Government, though armed with a proper search warrant or though making a search incident to an arrest, may seize, and use at the trial, testimonial evidence, whether it would otherwise be barred by the Fifth Amendment or would be free from such strictures. The teaching of Boyd is that such evidence, though seized pursuant to a lawful search, is inadmissible.

Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 319 (1967)(Douglas, J., dissenting).  The testimonial evidence in that case was clothing matching witness descriptions of a robber that had been seized from a washing machine during a lawful search.  Justice Douglas' minority view was that anything taken by an individual without his consent and used as testimonial evidence violates the Fifth Amendment. Id. at 320.  His point, lost to history, was that by permitting a search here and a seizure there, pretty soon it all adds up to a withering away of the purpose of the Fourth Amendment, to protect a zone of privacy free from government intrusion and prosecutorial use (thereby implicating the Fifth Amendment). 

Justice Douglas' concerns proved prescient in Terry v. Ohio, a decision that now seems quaint, where the Supreme Court of the United States puzzled over the notion of a "stop and frisk." That famous case birthed the novel idea that the Constitution allows a police officer - who possesses not probable cause, but a reasonable and articulable suspicion that criminal activity might be afoot - to accost an individual and pat him down for weapons.  The decision was intended to balance police officer safety (an undeniably legitimate concern) with personal integrity (an undeniable individual liberty).

Additionally, the question arose as to whether any discovered weapons or contraband could be used against the individual so stopped.  The Court cited two cases that bear mention: a civil case from 1891 refusing the authority to force a woman to submit to a physical examination in a case where she alleged injury and damages and a 1914 criminal case where the Court excluded from trial evidence obtained by police when they obtained a key from a neighbor and then were granted access by a boarder at a private home from which they took incriminating documents to prove fraud by the mails in relation to lottery tickets.  It then wrestled with its duty to fashion a fair equation balancing safety on the one hand with personal integrity on the other before launching an analysis considering whether the evidence, if any, obtained in such an endeavor could be used lawfully to prosecute.  No contraband or other evidence was germane to the decision as it rested solely on a permissible pat-down was for weapons which, if illegally possessed could be prosecuted.

Although long forgotten now, Terry established a two step process regarding both the authority of the police to stop and frisk and the evidentiary value of items seized cautioning against, "lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions." Terry v. Ohio, 392 U.S. at 13.  This was a narrow decision designed to guard against street violence against police officers; it specifically stated that the authorities must obtain a warrant for any other search whenever practicable. Id. at 20.  Justice Harlan's concurrence emphasized the danger to law enforcement from concealed weapons (the word "weapon" appears 63 times in the decision), almost encouraging state legislatures to enact provisions to protect officers on the street.

In that case, Mr. Terry and his friends had been casing a shop with the intent to rob or burglarize it arousing the suspicions of experienced police officers who foiled the attempt.  Mr. Terry (and one other) carried a concealed firearm - he was charged and convicted of unlawful possession of the same and sentenced to 1-3 years in prison.   Today, we forget that the issue surrounded the danger of concealed weapons (indeed, the NRA is pushing for state legislatures to expand all firearms rights, as "individual liberties" protected under the Second and Fourteenth Amendments).  Indeed, this "limited and narrow" Fourth Amendment violation no longer depends upon a reasonable or articulable concern for crime or fear of weapons; stop and frisk is a daily event for many people of color.

As he did in Warden, Maryland Penitentiary, Justice Douglas dissented in Terry v. Ohio.  Championing the roots of the Fourth Amendment, he remarked that giving police more power than a detached magistrate, "is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment." Id. at 38 (Douglas, J. dissenting).  This path abruptly ended in a steep cliff off of which we have decidedly jumped.

To be sure, a stop and frisk is not the same as a search incident to arrest as a search incident to arrest must, necessarily, be premised upon probable cause.  While a stop and frisk balances the safety of the police as against the individual's right to personal integrity, a search incident to arrest is (a) to protect the safety of the police, (b) to secure contraband that could be destroyed, but not (c) to obtain evidence by which the authorities can then prosecute.  It is still a tool for safety, not a fishing expedition unless of course we are in Massachusetts and a cellphone is involved. 

Cellphones are neither dangerous nor contraband; the only purpose in searching them can be for the purpose of prosecution.  This is certainly a search under the Fourth Amendment and Art. 14 as one has a reasonable expectation of privacy in one's phone (and indeed in everything one wears or carries on one's body).  The comparison the SJC made to a gym bag seized in Commonwealth v. Madera is laughable -  a gym bag could hold not only offensive odors but also contraband and weapons that could pose a danger to police officers.  But a cellphone cannot.  It has private information including thoughts and personal contacts subject to other protected rights such as the right not to be compelled to self-incriminate, the right to free speech and the right to be confronted with live witnesses, rights completely ignored in these troubling decisions. 

Even if we put aside whether a cellphone is properly seized incident to arrest, it being neither contraband nor weapon, given the practicality of obtaining a warrant to search any of its contents, the Court should have so required.  Because the SJC found no constitutional violation in this "minimal" search, evidence thereby obtained will be admissible in violation of the Fifth Amendment and Art. 12 despite its testimonial nature (as Justice Douglas likely would find, who one chooses to contact and for whatever purpose such contact is sought is intrinsically testimonial and subject to Fifth Amendment protections).  The hemming and hawing over how tiny this step is and how limited it is echo the limitations the Court placed upon Terry-type stops which have exploded into "stop and feel", harassing lawful citizens and even into full-on arrests without probable cause.

By ignoring history, Americans have confounded our very purpose of self government.  It is not to eliminate government or the good that government can, should and must do to effect a civil, free and fair society.  It is, however, to protect individual liberties in the face of a police state.  Erosion of rights occurs in increments and we are like frogs set in a pan of cold water unaware that as the temperature increases we will eventually boil to death.