ANTONIN SCALIA AND THE 4TH AMENDMENT

  
Many folks cannot figure out why the most conservative justice on the United States Supreme Court consistently takes a “liberal position” on cases involving the 4th Amendment.

I agree that Justice Antonin Scalia is the most conservative justice that we have seen in years. However, I do not agree that upholding our Constitutional right to be free from unreasonable searches and seizures, which is embedded in the 4th Amendment, is a liberal or left wing approach. In fact, I believe that taking a strong stance on 4th Amendment protections is extremely conservative. By consistently applying the 4th Amendment protections to cases that come before the Supreme Court, Scalia is protecting citizens from unreasonable force used by the state or federal government. You cannot be more conservative than that.

In his usual style, Scalia wrote a scathing dissent in a Supreme Court case that came down this month. Three members of the court’s so-called liberal wing joined him.

Scalia argued that searching the car of Prado Navarette, pulled over on suspicion of drunken driving, violated the Fourth Amendment’s protections against unreasonable searches and seizures. Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor agreed.

This conservative and liberal coalition is a developing trend in Fourth Amendment cases, and it’s one to pay attention to as the Court hears two more important cases this month.

In Riley v. California and United States v. Wurie, the Court will consider whether the police may search the contents of an arrestee’s cell phone without a warrant.

There is little doubt about what Scalia will say about these searches. In Navarette v. California, Scalia disagreed with the court’s conclusion that the police could lawfully stop a car after a woman anonymously called 911 and reported that the car had driven her off the road. Scalia wrote that such stops were not the Constitutional Framers’ concept of a “people secure from unreasonable searches and seizures.”

Additionally, in Maryland v. King, a case decided months ago, Scalia disagreed with the court’s conclusion that the police may lawfully take a cheek swab of someone’s DNA after he or she has been arrested for a serious offense. He expressed “doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Fortunately, it is highly probable that Scalia won’t be on the losing side of the cell phone case. Searches of cell phones have the potential to be far more invasive than the searches in Navarette and King.

Think about all the information on your cell phone; e-mails, texts, call logs, and apps. Your phone is a vast source of information about you.

The framers didn’t want the government to rifle through our most personal papers and effects without individualized suspicion that they might provide evidence of a crime.

I hope that the other justices will begin to look to Scalia’s leadership on 4th Amendment cases this month and in the future.