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MSBA session examines Fourth Amendment and electronic media

Andrew D. Levy of Brown, Goldstein & Levy LLP wrote in the petition for review that the original Baltimore City Circuit Court jury rendered ‘an inconsistent verdict’ that was ‘impossible to reconcile.’ (The Daily Record/Maximilian Franz)

The Supreme Court in 2014 came to the ‘profound recognition’ their prior opinions ‘don’t provide precedent for the search of a smartphone,’ says Andrew D. Levy, part of a panel at the Maryland State Bar Association’s Legal Summit & Annual Meeting examining Fourth Amendment issues and technology. ‘Smartphones are unlike anything that came before them.’ (File photo)

Your smartphone might be second only to your home in its level of protection against warrantless searches by police.

Such a conclusion can be drawn from the U.S. Supreme Court’s 2014 decision in Riley v. California, a ruling that will figure prominently in a panel discussion, “Searching Our Cells and Sites and Admissibility of Social Media,” scheduled for Friday morning at the Maryland State Bar Association’s Legal Summit & Annual Meeting in Ocean City.

In Riley, a unanimous court held police cannot search someone’s smartphone incident to arrest without a warrant or an exigent circumstance. That is the same standard applied to the home, but to few – if any – other places following an arrest under Supreme Court precedent regarding the Constitution’s Fourth Amendment protection against unreasonable search and seizure.

Andrew D. Levy, a member of the panel, called Riley the “seminal case of the Fourth Amendment in the computer era.”

The high court recognized that people have a heightened expectation of privacy in their smartphones, which essentially contain all that can be known about them, including photos, bank records and personal communications in texts and emails. A warrant or exigent circumstance is required to search them, even after their owner’s arrest, the court added.

In writing for the court, Chief Justice John G. Roberts Jr. “didn’t take an easy way out,” such as by holding every item is searchable following an arrest, Levy said. “He was very reluctant” to apply existing precedent to smartphones, added Levy, of Brown Goldstein Levy LLP in Baltimore.

The justices came to the “profound recognition” their prior opinions “don’t provide precedent for the search of a smartphone,” Levy said. “Smartphones are unlike anything that came before them.”

Levy added that it was in itself “unusual” the justices found unanimity on a criminal procedure issue, an area of the law on which they are so often divided.

Levy is scheduled to be joined on the panel by U.S. District Judge Paul W. Grimm, a nationally recognized expert on electronic discovery, and Court of Appeals Judge Michele D. Hotten.

The MSBA’s Criminal Law and Practice Section is sponsoring the panel.

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