Digital communications technology continues to pose questions about the extent of the Fourth Amendment’s protections against warrantless searches and seizures. Both federal and Texas criminal laws tend to progress at a much slower rate than technology. The U.S. Supreme Court has found in favor of defendants challenging searches of some new technologies, but every time the court makes such a ruling, several new technologies appear and raise new questions. A recent article in the Washington Post addresses the increasing use of devices that connect to the internet and how this affects Fourth Amendment rights. Police have used data from various “smart” devices both to corroborate and to refute statements by witnesses and suspects. One law professor describes this practice as “sensorveillance.” Whether collection of such data without a warrant violates the Fourth Amendment is an unresolved question.
For much of this country’s history, courts analyzed Fourth Amendment claims by looking at the extent of physical trespass on private property. Ninety years ago, Justice Brandeis objected to this standard, noting that Fourth Amendment violations are possible even “without a physical seizure” of evidence. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). This remark specifically referred to a police officer who obtained information from papers belonging to a defendant without ever physically intruding on the defendant’s property. It could also apply to digital searches conducted today.
The “physical trespass” standard gave way to “reasonable expectation of privacy” with Katz v. United States, 389 U.S. 347 (1967), which involved warrantless eavesdropping on telephone calls. In the 50 years since Katz, the Supreme Court has ruled against warrantless searches involving various technologies. These include the use of thermal imaging to look inside a private residence, Kyllo v. United States, 533 U.S. 27 (2001); recording a car’s movements with a global positioning system (GPS) tracker, United States v. Jones, 565 U.S. 400 (2012); and searching a cellphone after an arrest, Riley v. California, 573 U.S. __ (2014).