Search and Seizure in the Digital Age: Missouri at the Forefront
July 15th, 2014
The Fourth Amendment to the United States Constitution provides that the “right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated ….” The Missouri Constitution provides a nearly identical protection: “that the people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures….” This protection prohibits a search without a warrant based on probable cause; there are, however, a few exceptions which permit a search to be conducted without a warrant.
One such exception to the warrant requirement is when the search occurs incident to an arrest. The Supreme Court has continually recognized this exception, both for the purpose of protecting the arresting police officer(s) and to safeguard potential evidence that could be destroyed after the arrest. During an arrest, a warrantless search may be conducted even without a specific, identifiable concern for an officer’s safety or destruction of evidence. The probable cause for the arrest is “a reasonable intrusion under the Fourth Amendment [such that] a search incident to the arrest requires no additional justification.”
Recently, the United States Supreme Court considered whether a warrantless search of cell phone data was permissible under the incident to an arrest exception in the case of Riley v. California. The Court recognized that modern cell phones contain an immense storage capacity capable of storing thousands of pictures, millions of pages of text, and hundreds of videos. The amount of personal data contained in a cell phone is more extensive and intrusive than what could typically be found prior to the digital age on papers and effects carried by most people. This vast amount of data, available at the touch of a screen, prompted the Supreme Court to hold that police officers generally must secure a warrant before searching an arrestee’s cell phone.
Prior to the United States Supreme Court’s decision, the Missouri legislature approved Joint Resolution 27, which requires a vote by the citizens of Missouri on whether to amend the Missouri Constitution to protect “electronic communications and data” against unreasonable searches and seizures, in addition to the already-protected “persons, papers, homes, and effects.”  This vote will occur on August 5, 2014.
While the United States Supreme Court’s decision in Riley v. California does provide protection against cell phone searches, the proposed Missouri Constitutional amendment appears to be broader than the Supreme Court’s decision. The Supreme Court held that a warrant must generally be obtained prior to searching an arrestee’s cell phone; the proposed Missouri Constitutional amendment would provide protection against all unreasonable searches and seizures of electronic communications and data, not just protections against searches of cell phones.
The full text of the proposed Missouri Constitutional Amendment can be found here: http://www.sos.mo.gov/elections/2014ballot/. If passed, the amendment would be the first of its kind in the United States. As with any voting issue, voters should educate themselves on the language of the proposed amendment and the potential implications of the proposed amendment prior to casting their ballot.
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 See Weeks v. United States, 232 U.S. 383 (1913) (noting that English and American law uniformly allow the search of an arrested person to discover and seize the evidence or fruit of crime); see also Chimel v. California, 395 U.S. 752 (1969) (discussing the need for a warrantless search to ensure the safety of the arresting officer); see also United States v. Robinson, 414 U.S. 218 (1973) (holding that a warrantless search incident to an arrest requires no specific concern of loss of evidence or injury to officer).
 Robinson, 414 U.S. at 236.
 Riley v. California, 134 S. Ct. 2473 (2014).
 MO SJR27, 2014, Regular Session (2014).
 Missouri Could Become First State to Shield Private Digital Activity from Government Surveillance, Electronic Privacy Amendment (June 12, 2014), http://electronicprivacyamendment.com/press-release/.