By Tammie Beassie Banko

To determine whether a state action violates the Fourth Amendment, the Supreme Court employs a balancing test, weighing on the one hand “the degree to which [the action] intrudes upon an individual’s privacy and . . . the degree to which it is needed for the promotion of legitimate governmental interests” on the other hand. However, in an era in which a catalogue of a person’s GPS locations, text messages, emails, Google searches, banking information, personal notes, and grocery lists—potentially anything police would need to corroborate a crime—can be seized in one small cellular device, the scales seem to instantly dive, not merely tip, in favor of governmental interests. This is, in part, because officers seeking a warrant to search for and seize cellphones have had an easy case to make before a magistrate: (1) I have probable cause to believe X committed a crime; (2) almost every person owns a cellphone; (3) most criminals use cellphones to communicate and conspire; (4) X is a person and therefore probably owns a cellphone; and (5) evidence of his involvement in this alleged crime is likely within his phone inside his home. On this seemingly logical basis, a “valid” warrant to seize any cellphone would issue for any person suspected of committing any crime—a notion that the Fourth Amendment should not tolerate. The D.C. Circuit agrees.

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Recommended Citation
Tammie Beassie Banko, “You’re Not Gonna Reach My Telephone”— The Resurgence of the Fourth Amendment’s Particularity Requirement, 71 SMU L. Rev. 575 (2018)