Can Cops Search Your Smartphone?

The Supreme Court heard arguments yesterday in two separate cases addressing whether the Fourth Amendment’s protection against unreasonable searches and seizures extends to the contents of your cell phone. Sarah Gray sums them up:

The two cases being heard are on opposite ends of the spectrum. The first is Riley v. California. In 2009, David L. Riley had an expired car registration, and was pulled over in San Diego. Police also found two loaded guns and text messages that associated him with a gang. A further search of the phone linked him to an attempted murder. He was convicted and received 15 years in prison. Both the guns and phone were found without a warrant; a California appeals court ruled that the search was like going through a person’s wallet or address book and did not require one.

The second case is United States v. Wurie. Brima Wurie was arrested in Boston in 2007 on drug and gun charges. Officers searched his flip-phone’s call log without a warrant. A Boston federal appeals court threw out the cellphone records as evidence. Judge Norman H. Stahl wrote, “Today, many Americans store their most personal ‘papers’ and ‘effects’ in electronic format on a cellphone, carried on the person.”

Dahlia explains the court’s dilemma:

The problem for the court today is that they don’t much like the prospect of allowing the cops to search jaywalkers’ cellphones for evidence of anything bad they’ve ever engaged in. Even Justice Scalia conceded that for someone arrested simply for driving without seat belts, “it seems absurd that they should be able to search that person’s iPhone.” But at the same time, the justices also don’t want to hamstring the police who claim that if they can’t search cellphones, they will be in danger, and major crimes will go unsolved.

Serwer was unimpressed with the court’s tech savvy:

“Could you have a rule that the police are entitled to search those apps that, in fact, don’t have an air of privacy about them?” Chief Justice John Roberts asked. “What about something like Facebook or a Twitter account? There’s no real, there’s no – any privacy interest in a Facebook account is at least diminished because the point is you want these things to be public and seen widely.”

Roberts seemed confused by the difference between being able to see a public status update or a tweet and having direct access to a password-protected social media account through a mobile device – perhaps Anthony Weiner could enlighten him.

Noah Feldman hopes the justices insist on warrants for cell phone searches but fears they will settle for something less:

The court’s conservatives seemed very interested in the rule proposed by the office of the solicitor general, which is that the police should be able to search a smartphone without a warrant in order to find evidence relevant to the crime for which a person is being arrested.

On the surface, the proposed rule has some mild appeal. It certainly responds to Justice Scalia’s concern that every arrestee for any crime, no matter how small, could find his or her entire life’s data reviewed and logged into a single government archive. The trick would be figuring out how to limit a data search to information related to the cause of arrest. … As Justice Elena Kagan put it, “It sounds good as a limiting principle, but it ends up you can imagine in every case that the police could really look at everything.”

But that, as Amy Howe explains, wasn’t the only middle-ground rule proposed yesterday:

DuMont and Justice Alito, for example, suggested that a warrant should not be required as long as police are only looking at information – like a photograph – that is analogous to something that police could have searched in the pre-digital era.  But Justice Kagan objected that such a rule would actually exclude very little, noting that almost everything on a cellphone “could be reduced to a piece of paper.”  And Justice Stephen Breyer similarly noted that there is very little data on cellphones that wouldn’t have an analog from the pre-digital era, telling DuMont that the real problem is the quantity of data found on modern cellphones, which far outweighs the quantity of papers and photos that most people would carry around with them. …

And Justice Anthony Kennedy proposed yet another possible middle ground:  whether police can search an arrestee’s cellphone without a warrant would depend on whether the crime for which the individual was arrested was a serious or non-serious offense.   Having made that suggestion, though, Kennedy himself immediately expressed doubt about whether the Court’s cases would support a distinction between serious and non-serious offenses.

Orin Kerr points out that creating such a middle-ground rule is easier said than done:

[T]he Justices still have significant work to do in crafting a new rule, and not a lot of time in which to do it. If you go with a bright-line rule, the opinion pretty much writes itself; the choice of the bright line rule makes the decision easy to craft. But the middle-ground approach involves lots of different possible variables, with hard choices to be made among which variables should matter and how. That makes it tricky to craft, especially in a tight time window. To make things harder, there aren’t many examples of middle-ground answers from the lower courts. The only middle-ground approach that I recall from the lower courts was Judge Posner’s opinion in Flores-Lopez, which wasn’t necessarily a successful effort.

Brianne Gorod expects Scalia to come down, as he has in other recent cases, on the side of strong Fourth Amendment protections:

There should be little doubt about what Scalia will say about these searches. He has become a regular champion of the Fourth Amendments protections against “unreasonable searches and seizures.” 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.”

And in Maryland v. King, a case decided last term, 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.”

For Sullum, however, this is not a tough call:

The truth is that Court’s rules for arrest-related searches have been needlessly deferential for decades. Preserving evidence and protecting officers from hidden weapons were the two original justifications for making an exception to the warrant requirement. But neither of those goals requires reading detailed information about an arrestee, whether it is stored on a cellphone or in a notebook. Barring far-fetched emergencies, there is no legitimate reason why police, having secured such evidence, cannot go to the trouble of getting a court order authorizing them to examine it. That point is especially clear in the case of cellphones and other portable electronic devices, which routinely contain just the sort of private information the Framers meant to protect when they banned unreasonable searches of people’s “papers” and “effects.”