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.
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)