Article Critique
Liberty University
CJUS 500: Criminal Justice Integration
Professor Zemke
03/08/2023
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Abstract
The Constitution was created to protect the people of the United States from having their rights
violated. It is supposed to be an aid for law enforcement in doing their jobs both ethically and
effectively. However, as time goes by so do the constitutional amendments with becoming
outdated, which leaves much room for violations to occur. Some violations of people's rights are
not purposeful, some law enforcement officials just follow the specific wording involved in the
text and if certain wording is omitted it becomes a loophole. The advancement in technology
plays a huge part in police uncertainty in certain situations. The advancement gives law
enforcement officials more help in solving cases, however it also gives them more ways to
violate peoples fourth amendment rights For example, the fourth amendment and cell phone
searches and cell towers, the Fourth Amendment states “the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the persons or things to be
seized” ("Fourth Amendment protection against unreasonable search and seizure - FindLaw,"
2016). Cellphones are not specified in the text so that left officers open to produce their own
interpretation of how to search cellphones, many using the search incident to arrest clause to
allow them to conduct a warrantless search.
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Law enforcement has been given a big break in solving cases with the advancement of
technology especially when it comes to cellphones. Since mostly everyone owns a cellphone
nowadays and the fact that most people have grown accustomed to never leaving home without
them, many cases have been able to get solved by way of cellphone towers and cellphone
communication. However, with this new benefit comes new responsibility and new legalities
around it. It is way too easy to just call a cellular company and have them send the coordinates of
a suspect so that you can just go and arrest him, or even to track the suspect's crime spree by any
of the cell towers that he encountered to make a case open and shut. Even easier is to pull a
person over for drunk driving and search his cellphone in the process of arresting him and find
child pornography in his photo album in phone. All this could be done and has been done by law
enforcement without a warrant to many people, however unbeknownst to most all the while
having their fourth amendment rights violated.
Cellphones contain an enormous amount of personal information and a digital record of
record of our everyday lives, by way of where we go, who we talk to, what we watch, what we
listen to, search engines, photos, they contain grocery list, passwords to bank accounts and other
accounts, emails as well as other private personal information (Marshall et al., 2019, p. 06). So,
the importance of needing regulations put in place for law enforcement to not take advantage of
this benefit is major.
Article 1-Background
The first article that I chose to discuss is “The Cost of Privacy: Riley v. California’s
Impact on Cell Phone Searches” by Jennifer L. Moore, Jonathan Langston, and Joseph Pochron.
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This article discusses the Riley v. California Supreme court case regarding warrantless cellphone
searches by law enforcement and the question raised as to if a warrant is needed to search a
cellphone incident to arrest. In 2014, the case of Riley v. California was brought to the Supreme
Court regarding 4th Amendment rights violation. What originally started as a traffic violation of
expired registration tags, ended with Riley’s arrest after a search of the vehicle turned up two
loaded firearms underneath the hood of his vehicle (Moore et al., 2014, p. 8). During the search
incident to arrest Riley’s cellphone was removed from his pants pocket and searched by the
officer on the scene reviewing contacts and text messages, later to be handed off to detectives
that rummaged through its contexts consisting of photos still without a warrant, that tied Riley to
the Bloods gang and a shooting that occurred three weeks before his arrest (Moore et al., 2014, p.
8). The search incident to arrest comes from the case of Chimel v. California that declared that
police officers had the authority to conduct warrantless searches of a suspect and the area within
the suspects immediate control incident to arrest justifiably by the potential threat to the officer's
safety and the possible destruction of viable evidence.
The end resulted in the unanimous decision that cellphone searches needed to have a
warrant attached. Due to the large amount of explicit information that cellphones retain they are
not in the same individual property category as an open container or a wallet. They have the
capacity to hold not only the personal information of the owner, but also the personal
information of friends and family's personal information as well, which must be held to a higher
expectation of privacy.
Article 1 - Critique of Strengths and Weaknesses of the Article
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Strengths
The article had many strengths that the authors portrayed. One strength is that they called
out the constitution as being outdated and they provided examples to back up their statement.
They stated that the technology wave has caused all kinds of problems that were not foreseen,
and legislation is failing to catch up with the times. The constitution, being 200 years old, does
not consider all the advancements that have come into play in the 21st century regarding
technology and therefore lacks regulation (Moore et al., 2014, p. 7). The authors also mention
how far behind the Supreme Court is pertaining to technology when they just addressed the
outdated use of pagers in 2010, when they have been laid to rest years before (Moore et al., 2014,
p. 7).
Another strength of the article is that the authors acknowledge the limitations involved in
the Riley ruling. They advise that although it may seem like a win, the context as to how the
Supreme Court wrote the ruling leaves plenty of room for interpretation by lower courts and law
enforcement as well therefore giving the ability to find loopholes. Riley is limited solely to
search incident to arrest, which leaves the possibility of warrantless cellphone searches in
situations independent of arrest (Moore et al., 2014, p. 10).
Weaknesses
There were very few weaknesses in the article, however I did come across one. The
authors were based on their writing. In reading the article, I was left with the interpretation that
they were against the Supreme Court's decision and that they only accounted for the negative
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effects that it would have on the individuals working in the justice system. It failed in offering
the positive effects that it would have on citizens and their ability to protect their privacy from
just being broadcast to law enforcement before they are even convicted of a crime.
The article seemed to be one sided and reared on the side that the ruling was making law
enforcement jobs more difficult. The authors also made it known that the Supreme Court judges
were just as outdated as the constitution when it comes to technology and that they should have a
better understanding of it before making decisions about it (Moore et al., 2014, p. 16).
Article 2-Background
The second article that I will discuss is “The Post-Riley search warrant: Search protocols
and particularity in cell phone searches” by Adam M. Gershowitz. This article discusses the
aftermath of the decision made by the Supreme Court in the Riley v. California case. The author
discusses the lack of use of the Fourth Amendments particularity requirement being used by
judges when issuing out search warrants for cellphone searches. The Riley case's purpose was to
protect the privacy of cellphone data from being used and abused by law enforcement officers.
The original argument was made that cellphone's carry a large amount of personal data and
searches incident to arrest can be conducted for low level offenses that have nothing to do with
cell phones (Gershowitz, 2015, p. 587). So, the allowance for officers to be able to search
through tons of personal data in a cell phone for low level crimes was senseless and therefore
should require a warrant to breach that privacy.
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However, instead of things improving with the Riley ruling, things have gotten worse in
protecting privacy. Now that the warrant requirement has been put into place, another issue has
been adopted, the judges are issuing broad warrants. The Post Riley warrants authorize
expansive searches of the entire cellphone instead of narrowing it down to the specific
information needing to be obtained (Gershowitz, 2015, p. 588). For instance, if the police are
looking for text messages between two individuals, there is no purpose to include in the search
photos or search history. Many post Riley cases had search warrants authorizing police with
limited suspicion of criminal activity to rummage through reams of unrelated confidential data
(Gershowitz, 2015, p. 590). Some warrants also failed the Fourth Amendments particularity
requirement by not clarifying how the cellphone search relates to the criminal investigation,
therefore those warrants should have been thrown out.
Article 2 - Critique of Strengths and Weaknesses of the Article
Strengths
There are many strengths in this article. One strength is the fact that the author offers
solutions to the problems of the Post Riley warrants. One solution is for courts to try and
effectuate the Fourth Amendments particularity requirement by imposing ex ante search protocol
on cell phone searches (Gershowitz, 2015, p. 591). Officers would be subjected to submit step
by step details that they will take in searching a seized cellphone before they are issued a
warrant. Another solution is for courts to restrict where on the phone the police officers can
search in the warrant, if the investigation needs the text messages between an informant and a
suspect then that search should be limited to text messages.
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Another strength of the article is that it is unbiased, I am not given the impression that it
is one sided. The author offers both problems and solutions and supports the argument for both
with factual cases. The author is also understanding in the fact that some of the problems I the
Post Riley warrant issue is not just because of the Supreme Court ruling, but it also stems from
the broad language that it was written in that allowed for loopholes to be had (Gershowitz, 2015,
p. 595). The author also discusses the breakdown of the particularity guarantee as it pertains to
technology, the fact that narrowing a search of technology for officers is a more challenging task
then narrowing down a search in a home or vehicle (Gershowitz, 2015, p. 599).
Weaknesses
This article did not have may weakness, in fact the only weakness that I felt was in the
article is that the author failed to provide me with some positive cases that happened post Riley
which left me with the impression that all the cases after Riley have been nothing but problems.
He gave me plenty of examples of Riley failing to protect privacy but none to show me that it
has worked for some examples and the ruling was not a complete failure.
Another weakness is that the article makes me feel like the judges are conspiring with the
police to protect them by issuing these warrants with no grounds. The article emphasizes police
pushing the envelope and requesting warrants for unrelated applications in the cellphones and the
judges are giving it to them (Gershowitz, 2015, p. 589).
Summary of Articles
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The case of Riley v. California brought about many changes to the way law enforcement
must operate regarding privacy protection of cell phones. It also has helped to expand the
constitution to include the technological world that we now live in and has forced the changes to
be made to account for that change. The first article addresses the situation that caused Riley to
come into play in the first place with the warrantless search of cellphones incident to arrest. The
authors called out the importance of the courts maintaining personal privacy of cellphone users
(Moore et al., 2014, p. 7). It also introduced the limitations that the ruling would have in being
followed by law enforcement and other courts. The second article piggybacked off the first
article and brought to light the limitations that the previous article had reported. The second
article discussed the need for better guidelines in issuing warrants to police officers to search
cellphones to uphold the privacy protection that Riley was set out to do (Gershowitz, 2015, p.
588). Both articles were highly informative and gave great points to support their arguments.
Conclusion: Personal Reflection, Position, and Christian Worldview
It is especially important to have guidelines in place regarding searches of cellphones. I
am one of those people that has their whole life in my cellphone, including pictures, emails,
work schedules, social security numbers, contact information, passwords to bank accounts, bill
pays and so much more private things, so for someone to jut invade that privacy, I would feel
violated. However, with working in the criminal justice field, I have seen how cellphone use has
had a positive impact on law enforcement solving cases, so I know the importance of them being
able to search them is. I have had many cases come across my desk that involve police getting
the suspect by way of cellphone towers or cellphone communication, however they can still get
the same effect with a warrant.
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When it comes to the Fourth Amendment and the biblical worldview, we can look at the
fact that a man's home is his castle, and no one should intrude on the sanctity of that without a
lawful warrant. Deuteronomy 24:10-11 reads that when thou dost lend thy brother anything,
thou shalt not go into his house to fetch his pledge. Thou shalt stand abroad, and the man to
whom thou dost lend shall bring out the pledge abroad unto thee (Strackbein, 2012). Accordig to
Gods law the intrusion into a man's house is a violation of his freedom and the only Gods law
can protect a man from the malice and interference of powerful men (Strackbein, 2012). This
interpretation means that God does not agree with the invasion of individual property unless
there is a lawful reason for it and that reason should come with a search warrant attached.
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References
The Fourth Amendment protection against unreasonable search and seizure - FindLaw. (2016,
April 4). Findlaw. https://constitution.findlaw.com/amendment4.html
Gershowitz, A. M. (2015). The Post-Riley search warrant: Search protocols and particularity in
cell phone searches. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.2634473
Marshall, E. W., Groscup, J. L., Brank, E. M., Perez, A., & Hoetger, L. A. (2019). Police
surveillance of cell phone location data: Supreme Court versus public opinion.
Behavioral Sciences & the Law, 37(6), 751-775. https://doi.org/10.1002/bsl.2442
Moore, J., Langton, J., & Pochron, J. (2014). The cost of privacy: Riley v. California’s impact on
cell phone searches. Journal of Digital Forensics, Security and Law.
https://doi.org/10.15394/jdfsl.2014.1185
Strackbein, W. (2012, May 1). How to stop TSA abuse: A biblical look at Fourth Amendment
liberties. Chalcedon. https://chalcedon.edu/magazine/how-to-stop-tsa-abuse-a-biblical-
look-at-fourth-amendment-liberties
