NO LONGER ACCEPTING EXCEPTIONS: EXCEPTIONS TO THE EXCLUSIONARY RULE OF THE FOURTH AMENDMENT ARE UNCONSTITUTIONAL AS APPLIED TO SMARTPHONES.

• Author: Mondell, Douglas A.

1. Introduction

   "[The] 'exclusionary rule'... keeps courts from being 'made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.'" (1) This excerpt of Justice Sotomayor's stinging dissent in Utah v. Strieff stems, in part, from the Supreme Court's long history of limiting the corrective power of the exclusionary rule and the protections that the Founding Fathers believed the Fourth Amendment would provide to the citizens of this country. (2) Americans are to be afforded a reasonable expectation of privacy, free from government intrusion, unless and until law enforcement has reasonable suspicion that a crime has been, is being, or will be committed. (3) This is an important issue for many Americans who place a high value on their privacy. (4) One of the most private personal effects an American carries with them is their smartphone, (5) which can contain pictures, videos, text messages, emails, voicemails, banking information, etc. (6) This vast collection of private information is literally in the hands of people all across the United States because Americans who do not own a smartphone are now the minority. (7)

   While the connection between the Fourth Amendment of the United States Constitution and smartphones may not be explicit, most people in the United States are now using a device that stores gigabyte upon gigabyte of their private information. (8) All of this information, contained on a smartphone, can be found on someone's person at any given time--even during arrest. (9) Near the time of an arrest, law enforcement should obtain a warrant to search an arrestees' smartphone, but even if that warrant turns out to be defective, the evidence discovered could, nevertheless, be admitted in a court of law. (10)

   While this so-called good faith exception (11) to the exclusionary rule, along with the other exclusionary rule exceptions, seem to be violations of the Fourth Amendment, the Supreme Court sanctioned these exceptions as constitutional in numerous decisions. (12) The problem with this is that a majority of these Fourth Amendment cases predate smartphones. (13) Where the evidence that can be found from an unwarranted search of a home or a car is limited and quantifiable, the amount of information available from a search of a smartphone is endless. Section II of this Note will discuss the way that the Fourth Amendment has morphed from protecting the rights that it originally intended to protect into a doctrine with exceptions never intended by the Founding Fathers. (14) Then, Section III will describe the reasons why exceptions to the exclusionary rule were instituted and the detriment these exceptions can bring to smartphone users. (15) Section IV, will argue that, due to this significantly disproportionate difference in information available, the good faith exception, and other exceptions to the exclusionary rule, are unconstitutional when applied to searches of smartphones. (16) Finally, Section V will conclude why a number of the exceptions to the exclusionary rule are unconstitutional when illegal searches are made of smartphones. (17)

2. History

   Many courts, and much of the legal community, seem to have mistaken the Founding Fathers' reason for including the Fourth Amendment in the Bill of Rights. (18) In the years leading up to the American Revolution, warrants were "general warrants" that gave law enforcement far too much power. (19) These general warrants gave the police free rein to conduct any search and seizure when they had the slightest belief that criminal conduct was afoot. (20) The use of general warrants created much discontent among colonial Americans and was the reason behind the inclusion of the Fourth Amendment in the Constitution. (21) However, since the ratification of the Constitution, the Supreme Court's interpretation of the protections guaranteed by the Fourth Amendment has changed many times. (22)

   Boyd v. United States (23) was the first major case in which a question regarding the exclusion of evidence obtained in violation of the Fourth Amendment was heard before the Supreme Court. (24) The Petitioner argued that being forced to turn over self-incriminating evidence, his own personal documents, to law enforcement was a violation of his Fourth and Fifth Amendment (25) rights. (26) The Court was persuaded by the Petitioner's Fourth Amendment argument, acknowledging that an unreasonable search and seizure had occurred even though there was no intrusion into the Petitioner's home. (27) Additionally, the majority found that the Petitioner's Fifth Amendment protections had also been violated. (28) The Court made it clear that the evidence obtained in violation of the Fifth Amendment would be excluded, but adversely, the evidence uncovered as a result of the violation of Boyd's Fourth Amendment rights would not. (29) After the dismissal of Fourth Amendment protections in Boyd, it was not until 1914 that another major Fourth Amendment case was again before the Supreme Court. (30)

   Consequently, when Weeks v. United States was decided, the Fourth Amendment was given a much-needed reaffirmation of legitimacy. (31) The decision in Weeks required that illegally obtained evidence be excluded from trial without exception. (32) The Court's position was that it made no sense to have a Fourth Amendment if it did not do anything to promote the liberties enjoyed by the citizens of this country. (33) If law enforcement faces no repercussions for conducting illegal searches and is rewarded with the admittance of illegal evidence at trial, then there is nothing to dissuade would-be violators. (34)

   However, state courts across the country interpreted the Weeks decision as only applying to the federal government, and the States felt that they did not have to abide by the ruling if they so decided. (35) While the Fourth Amendment suffered a slight setback in Wolf, thankfully that obstruction only lasted twelve years before it was overruled by Mapp v. Ohio. (36) The Supreme Court in Wolf found that the states should not have to abide by the same restrictions placed on federal courts when the Fourteenth Amendment (37) bound the states to enforcing the protections of the Fourth Amendment as well. (38) Justice Harlan penned a strong dissent in Mapp claiming that the Court went out of its way to overrule Wolf. (39) Even if Justice Harlan's accusation is true, the majority's holding that the exclusionary rule applies to the states is still the law of the land today. (40)

   Katz v. United States, decided by the Warren Court in 1967, gave American jurisprudence the first notion of a "reasonable expectation of privacy." (41) The question before the Court was whether the use of a wiretap on a public phone booth was a violation of the Fourth Amendment guarantee against unreasonable search and seizure. (42) The Court found that "once it is recognized that the Fourth Amendment protects people--and not simply "areas"--against unreasonable searches and seizures, it becomes clear that the reach of the Fourth Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure." (43) The Court's holding in Katz, once again, heightened the warrant requirement of the Fourth Amendment even further. (44)

   After the implementation of the exclusionary rule and the creation of the idea of a reasonable right to privacy, it was not long before the Supreme Court backpedaled on their progressiveness and decided that excluding all evidence obtained illegally was overbroad. (45) The majority in Leon felt that barring all evidence from admittance at trial created problems in its attempt to solve other ones. (46) To solve the problems law enforcement was thought to be facing, the Supreme Court made it easier for evidence to be admitted in a situation where the police officer was not the reason for the illegal search and seizure occurring. (47) In the same decision, the Court affirmed the denial of a motion to suppress evidence in an instance where police relied, in good faith, on a warrant issued without probable cause. (48) The dissent, consisting of Justices Marshall, Brennan, and Stevens, called the decision in Leon a "victory over the Fourth Amendment." (49) The dissent further argued that while the Fourth Amendment does not explicitly forbid the admittance of illegally seized evidence, it is easy to infer that the purpose of the Fourth Amendment is to make sure that this evidence does not get admitted. (50) The dissent further claimed that the majority was too quick to combat crime by infringing on constitutional rights instead of letting the legislature find other, more appropriate ways to solve the problem. (51)

   In much the same fashion, Herring v. United States (52) allowed evidence to skirt the exclusionary rule when police relied, in good faith, on an outstanding arrest warrant that did not actually exist. (53) The Court again focused on the same argument that if evidence had to be excluded every time there was a clerical error, too many criminals would go free. (54) In this five-to-four decision, Justice Ginsburg's dissent brought up the majority opinion in Arizona v. Evans, (55) holding that one of the purposes for the exclusionary rule's creation was to discourage the police from being careless. (56)

   Jumping ahead (only six years) to the Court's 2014 decision in Riley v. California (57) that requires police, with a few exceptions, to get a warrant in order to search an arrestee's smart phone. (58) In fact, one of the final lines written by Chief Justice Roberts states, "[o]ur answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple--get a warrant." (59) While the Court seems to pride itself on its defense of the Fourth Amendment, it was silent on the "good faith" exception established in Leon. (60) In fact, the unanimous...