Tweet
WASHINGTON — The Supreme Court on Tuesday seemed torn as it considered a pair of cases about whether the police need warrants to search the cellphones of people they arrest.
Some justices seemed inclined to apply precedents strictly limiting the privacy rights of people under arrest. Those decisions say warrantless searches in connection with arrests are justified by the need to find weapons and to prevent the destruction of evidence.
“Our rule has been that if you carry it on your person, you ought to know it is subject to seizure and examination,” Justice Antonin Scalia said.
Other justices said the vast amounts of data held on smartphones may require a different approach under the Fourth Amendment, which bars unreasonable searches.
“We’re living in a new world,” Justice Anthony M. Kennedy said. “Someone arrested for a minor crime has their whole life exposed on this little device.”
Several justices noted that modern smartphones contain troves of private materials, including bank and medical records.
“Most people now do carry their lives on cellphones,” Justice Elena Kagan said, “and that will only grow every single year as young people take over the world.”
Justice Sonia Sotomayor added that the court’s decisions in the cases argued Tuesday would almost certainly apply to tablet computers and laptops seized at the time of arrest.
But Chief Justice John G. Roberts Jr. said phones also contained “information that is specifically designed to be made public,” mentioning Facebook and Twitter.
The pace of change, Justice Samuel A. Alito Jr. said, made the justices’ jobs very difficult.
“Smartphones do present difficult problems,” he said, later asking: “So how do we determine what the new expectation of privacy is now?”
The justices proposed various ways to allow searches of cellphones, or parts of them, after some but not all arrests. One idea that seemed attractive to several of them was to limit searches when the arrest was for a minor crime.
“A person can be arrested for driving without a seatbelt,” Justice Kagan said. “And the police could take that phone and could look at every single email that person has written, including work emails, including emails to family members, very intimate communications, could look at all that person’s bank records, could look at all that person’s medical data, could look at that person’s calendar, could look at that person’s GPS.”
Examples like that seemed to trouble Justice Kennedy, who said the police could obtain “the tax return of the jaywalker” they arrested.
“Maybe the distinction ought to be between serious and nonserious offenses,” he said. He acknowledged that the approach would be a change. “I don’t think that exists in our jurisprudence,” he said.
Justice Scalia pressed a related approach, suggesting that searches could be limited to information relevant to the crime for which the person was arrested.
“That will cover the bad cases,” he said, “but it won’t cover the seatbelt arrest.”
In Tuesday’s first case, Riley v. California, No. 13-132, a state appeals court in California allowed a search of David L. Riley’s smartphone after he was pulled over for having an expired auto registration. The police found loaded guns in the car and, on inspecting Mr. Riley’s smartphone, entries they associated with a street gang.
Continue reading the main story Continue reading the main story
In the second case, United States v. Wurie, No. 13-212, the federal appeals court in Boston in May threw out evidence gathered after the police there inspected the call log of a drug dealer’s rudimentary flip phone.
Jeffrey L. Fisher, one of Mr. Riley’s lawyers, warned the justices to think hard about a decision he said could fundamentally change “the nature of privacy that Americans fought for at the founding of the Republic and that we’ve enjoyed ever since.”
Justice Alito asked why digital information should be treated differently from its tangible equivalents.
“What is the difference between looking at hard-copy photos in a billfold and looking at photos that are saved in the memory of a cellphone?” he asked.
Mr. Fisher responded that data are different. “Even the notion of flipping through photos in a smartphone implicates vast amounts of information,” he said, “not just the photos themselves, but the GPS locational data that’s linked in with it, all kinds of other information that is intrinsically intertwined in smartphones.”
Much of the argument concerned whether immediate searches were required to keep police officers safe and to prevent the destruction of evidence.
“Why can’t you just put the phone on airplane mode?” Justice Sotomayor asked.
Michael R. Dreeben, a deputy solicitor general, responded that police officers should not be expected to know how to operate “the 500, 600 models of phones that are out there.”
He also urged the justices to avoid fashioning a constitutional principle based on fast-evolving technologies. Justice Sotomayor’s question assumed, he said, “that cellphones are not going to be able to be used in airplanes in the next five years and that manufacturers will continue to make an easily available button for airplane mode.”
The justices seemed less persuaded by the prospect that a phone might be used to summon confederates or to detonate a bomb.
“I would assume you need to operate the phone to set off the bomb, so that once the police have the phone the bomb is not going to be set off,” Justice Sotomayor said.
Chief Justice Roberts pressed Mr. Dreeben and California’s solicitor general, Edward C. DuMont, for examples of phones that had detonated bombs or had been remotely erased. He heard nothing concrete in response.
But the justices seemed receptive to a general point from Mr. Dreeben.
“It’s an arms race between the forensic capabilities of law enforcement labs and the abilities of cellphone manufacturers and criminals to devise technologies that will thwart them,” he said. “And they will leapfrog each other.”
The justices seemed to have varying degrees of familiarity with their phones’ capabilities. Mr. Dreeben said he did not know whether Justice Stephen G. Breyer had an iPhone.
“I don’t, either,” Justice Breyer responded, “because I can never get into it because of the password.”
Comment