Cell Phone Searches by Employers

This Article presents a framework for analyzing cell phone searches by employers. The framework proposed in this Article is structured around two primary variables: (1) whether the employee whose cell phone is searched works for a public or private employer, and (2) whether the cell phone is owned by the employer or employee. The starting point for developing a framework for cell phone searches is the Fourth Amendment to the United States Constitution, which prohibits “unreasonable searches and seizures” by state actors, including public employers. To be reasonable, a Fourth Amendment search or seizure must ordinarily be justified by a warrant or warrant exception. One warrant exception of particular relevance here is the “workplace exception” established by the United States Supreme Court in O’Connor v. Ortega, which allows for certain employer-initiated searches on the basis of an employer’s own determination of reasonable suspicion. Other key Supreme Court precedents that impact employee cell phone searches include City of Ontario v. Quon, which applied the O’Connor exception to uphold an employer’s review of text messages on an employer-owned device; and Riley v. California, which established heightened privacy protections for personally owned cell phones

FROM THE EDITOR

In this issue we have three papers that have made the cut. The first paper titled “The Cost of Privacy: Riley v. California’s Impact on Cell Phone Searches” is timely. In 2014 there was a unanimous decision that requires a warrant for all cell phone searches. This has some strong implications on the forensic analysis of mobile phones, and to that end, this article discusses and summarizes this legal precedent with its practical implications

Texting While Driving Meets the Fourth Amendment: Deterring Both Texting and Warrantless Cell Phone Searches

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. Trading a confession for a search will encourage guilty pleas while reducing invasive, warrantless cell phone searches that are currently authorized under the Fourth Amendment

Searching Cell Phones After Arrest: Exceptions to the Warrant and Probable Cause Requirements

Police officers lawfully arrest a suspect, search him, and seize his cell phone. Sometime later, without first getting a search warrant, an officer answers an incoming call, reads an incoming text, or examines the phone’s memory, call log, prior text messages, photographs, or Internet access records. As a result, the police acquire information that leads to additional evidence concerning the arrest crime, or a totally different and unrelated crime. Prior to trial, the defendant moves to suppress the evidence. The prosecutor argues that the officer’s action was justified by exigent circumstances, constituted a lawful search incident to the arrest, or both. Part I of this Article sets out the general rules governing searches and seizures by the police. Part II examines the exigent circumstances doctrine and its application to cell phone searches. It concludes that, properly construed, that doctrine can be applied to cell phone searches without excessive invasions of privacy. Part III examines the search incident to arrest doctrine, criticizes the courts that have taken either too permissive or too restrictive an approach to that doctrine’s application to cell phone searches, and proposes an approach that strikes an appropriate balance between the purposes underlying the doctrine and respect for the quantity and kinds of information that the typical cell phone contains

Teacher Cell Phone Searches in Light of Ontario v. Quon

Technological innovations permeate almost every inch of society. From the government and corporate workforce to family and social settings, technology seemingly knows no boundaries. Technology’s limitless reach has even crossed into the realm of public schools, where, according to teacher Lyn Newton, “[s]chool principals are witnessing more and more cell phone use by their teachers.” Teachers, like other cell phone users, use cell phones not only for making phone calls, but also for taking pictures and texting, which has landed some teachers in trouble for inappropriate communications. Indeed, the sexting wave has not eluded teachers

The Constitutionality of Warrantless Cell Phone Searches: Incident to Arrest

As technology has developed, Americans have come to carry their most private information around with them in their pockets in digital form on their cell phones. A cell phone has immense storage capacity and can contain a wide variety of communicative information about its owner. In the past, there had been a disagreement among the lower courts as to whether police officers could search the contents of an arrestee\u27s cell phone when making an arrest. The United States Supreme Court settled this disagreement in Riley v. California; in that case, the Court held that the warrantless search of a cell phone incident to arrest violated the Fourth Amendment to the United States Constitution. This thesis discusses case law that preceded the United States Supreme Court case Riley v. California, that decision, and possible ramifications of that decision

The Cost Of Privacy: Riley v. California’s Impact on Cell Phone Searches

Riley v. California is the United States Supreme Court’s first attempt to regulate the searches of cell phones by law enforcement. The 2014 unanimous decision requires a warrant for all cell phone searches incident to arrest absent an emergency. This work summarizes the legal precedent and analyzes the limitations and practical implications of the ruling. General guidelines for members of the criminal justice system at all levels consistent with the Supreme Court’s decision are provided