THE BLOG
05/12/2014 05:46 pm ET Updated Jul 12, 2014

On Cell Phone Searches, Court Must Doff to Its Youngest Member

We all know someone about the age of 55 that uses technology. And we all have a very humorous anecdote about something they do, usually on a cell phone, that only someone who grew up with a letter starting their phone number would ever do. For me, it's my mom. God love her, and happy belated Mother's Day, but every time she sends me a text message, actually an iMessage so she's getting better, she will sign it, "Mom." Yeah, it's as adorable as it sounds. It's also very innocuous because her signing text message doesn't implicate the rights of the accused in our legal system. However, John Roberts, who I'm pretty sure isn't my mom, does have such power, and he seemingly also has the same amount of knowledge on how technology works.

In the next five years or so, a number of high-profile and high technology cases are about to come to the Supreme Court, and the Court will decide to either extend the Constitution to technology, or it will choose not to for the sake of police expedience at the cost of civil liberties. These cases will range from GPS tracking to protection for journalists, and if the Court is wise, it will look to the experience of Elena Kagan not for her jurisprudence, but because she knows how technology is used by the everyday American.

In joint cases, United States v. Wurie and Riley v. California, the boiled down issue is whether the police may search a cell phone incident to an arrest without a warrant. Generally, the police are allowed to search a person and the area reasonably within the reach of the person after they are arrested. This is meant to avoid any danger to the officers and to also prevent the destruction of evidence. Before we carried encyclopedias in our pockets, the amount of information the police would find in such a search was fairly limited.

However, that's not the world we live in anymore. Now, an entire criminal enterprise can be documented on a cell phone. A person who is arrested may have 1,000 photos of the person they are accused of stalking on their phone. This would be damning evidence that may stem from an arrest that was questionable at best. But good luck getting to a trial to exclude the evidence when your public defender is advising a plea because he has eight minutes of legal experience and the police now have texts from you and your accomplices.

The purpose of a warrant is to stop overzealous police and prosecutors from running roughshod over your Fourth Amendment rights. And mind you, the people being searched are innocent at this point. They have been convicted of nothing. The Court in Fernandez removed the judiciary from protecting the accused's rights, and I fear they may do it again; it may stem from a group of judges, some of whom predate World War II, that don't understand technology. Consider Chief Justice John Roberts who seriously questioned what activity, other than drug dealing, would require two cell phones. God help all the professionals out there who I thought were busy but have apparently been peddling bath salts.

Most importantly, this is just one of many cases that will have to deal with how we extend civil liberties to technology. For the past few years, a bill has been debated in Congress to determine what journalists qualify for protection and which ones do not. Think about how terrifying that is: Congress determining whether or not your scoop exposing political corruption will be afforded journalist protections because you write for a ".com" and not the New York Times.

When you look at the average age of the Court and Congress, it's easy to see how they're not intentionally out of touch with technology; they simply grew up in a world without it. Elana Kagan is on the cusp, but from everything I've seen, she understands technology in the modern era. While this doesn't give her carte blanche to write opinions, it certainly gives her the unique and necessary prospective to protect civil liberties and increasingly connected and technological world. Blogs, Twitter, Facebook, cell phones, VoIP, Skype: These weren't in the contemplation of the Founding Fathers but freedom from illegal search was and needs to have its integrity protected. That, or we're going to live in a society where the Court's presuppose by next email to a client isn't about partnerships but about PCP.