Feb 092011
 
 February 9, 2011  Posted by  Court, Surveillance

FourthAmendment.com points us to a case in the Eighth Circuit holding that a cell phone is a “computer” for purposes of the U.S. Sentencing Guidelines: United States v. Kramer, 10-1983 (8th Cir. February 8, 2011).

Reading the excerpt from the opinion explaining their legal reasoning, I was left wondering, “Well wait…. if a cell phone is a computer in this context, why isn’t  a cell phone always a computer for purposes of “search incident to arrest?”  Thankfully, my confusion was reinforced by John Wesley Hall’s comment under the excerpt:

[Note: So, how can the government now argue that a cell phone seized in a search incident is not a computer, too? When is a cell phone a mere storage device and not a computer? Only when the government wants it to be not a computer, apparently.]

Over on Simple Justice, criminal defense attorney Scott Greenfield also comments on the decision, while Orin Kerr approves of the decision over on The Volokh Conspiracy.

So if I understand this (and I clearly don’t!), your cell phone will be treated as a “computer” if using a “computer” makes your crime somehow worse, but that same device may be essentially just a pack of cigarettes if it’s near you when you are arrested because a pack of cigarettes can be searched without a warrant as “incident to an arrest.”

I wish Congress would enact legislation that gives Fourth Amendment protections to personal electronic devices. As long as law enforcement can seize the device incident to an arrest, evidence would be protected from destruction and they could then apply for a warrant to search it. I realize it would not be as convenient for law enforcement, but I think the abuses involving border searches of laptops and other cases indicate that law enforcement and government have got to be checked by statutes that protect the privacy of the citizenry.

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