One case, Riley v. California, involves an officer who seized a “smartphone” from a person who was under arrest and began to scroll through its contents at the scene of the arrest. He was looking through text messages and the phone’s contact list. The second case, United States v. Wurie, an officer believed the person arrested had used a cell phone to arrange a drug deal. At the police station, an officer noticed that a “flip” phone was repeatedly receiving calls from a number labeled “my house.” The officer searched through the call log on the phone in order to obtain the home phone number.
A key issue for justices is whether digital evidence is different from physical items. Is a billfold of photos in a wallet different from thousands upon thousands of photos stored in a cell phone? Is the phone a container of sorts that in a search, which is incident to arrest, would be permissible and not violate the Fourth Amendment?
Justice Elena Kagan appeared to be sensitive to the privacy interest citizens have in protecting their phones from unreasonable searches.
During argument on Wurie, she offered an example where someone was arrested for “driving without a seat belt.” The police could, if the government’s argument was the rule, take that person’s phone and “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 and find out every place that person had been recently because that person was arrested for driving without a seat belt.”
“That strikes me as a very different kind of world than the kind of world that you were describing where somebody has pictures of their family in a billfold. Doesn’t it strike you that way?” Kagan asked. When the government did not seem to grasp what she was saying, she added, “People carry their entire lives on cell phones. That’s not a marginal case. That’s the world we live in, isn’t it?”
There was also a notable exchange that occurred during argument on Riley that demonstrated how inattentive to privacy the government’s position can be and just how much wide discretion the government believes police should have to conduct searches.
JUSTICE KENNEDY: I don’t think it’s odd to say that we’re living in a new world. Justice Kagan’s questions point out the fact that someone arrested for a minor crime has their whole existence exposed on this little device. From your argument, you want us to adopt a categorical rule, it’s in the custody of the police, they can search it. Do you have any limiting principles that we should considerate at all as a fallback position?
MR. DREEBEN: Yes, Justice Kennedy, I do. The first one that I think has been discussed in both arguments and Justice Scalia has brought it up as well, is that the evidence to be searched, unless there’s some exigency, should be relevant to the crime of arrest and the Court can articulate that in a way that would prevent roving searches or speculative searches.
Deputy Solicitor General Michael Dreeben conceded, “You can’t just rove through the phone.” There would need to be a “scope focus.” This would help ensure police “conform their conduct to the constraints of the Fourth Amendment.” But, Justice Ruth Bader Ginsburg asked what the scope would be?
MR. DREEBEN: It would depend on the crime. So if you were looking for evidence related to the crime of possession of child pornography, you could certainly go through photographs. If you were looking for another crime, potentially drug trafficking, you would look for things like drug ledgers, recent contacts, lists of customers and not necessarily in videos.
CHIEF JUSTICE ROBERTS: It’s very hard to see how that limit would be applied. You can see and the police would be able to tarticulate why almost every application, every entry on a cellphone would reasonably be anticipated to have evidence of a particular crime. Obviously emails, obviously call logs. Even, you know, Facebook. If it’s a weapons crime, maybe they’ve got pictures of themselves with guns. I mean, I have trouble imagining what application, what entry police could not say it’s reasonably likely that there would be evidence of the crime.
This was a clear rejection of the government’s position that it would be okay for police to be able to determine the scope of a warrantless search of the cell phone of a person under arrest.
The issue is giving law enforcement too much discretion and power. Justice Stephen Breyer recognized that it was important to remind the government of the “point of a warrant.” It is supposed to be a check on police getting carried away. If there is a basis for a search, the warrant authorizes the search. If there is no basis, no search is supposed to happen. And it is important to have a “third dispassionate mind to review what the facts are.”
Should the tradition of requiring police to get a warrant be further undermined by the proliferation of this technology in society?
Judith H. Mizner, the public defender representing the defendant in Wurie, argued, “Sanctioning a general evidence gathering search of the entire contents” of a “cell phone, given the current expansive nature of those contents is an unwarranted expansion of a traditional search incident to arrest, because we are not talking about the kind of traditional containers that holds limited, finite quantities of usually other objects.”
In other words, what Mizner was saying was cellphones are not wallets. Just because they are being carried on a person in public does not mean police should be permitted to search the phone’s contents immediately upon arrest without a warrant.
Photo by Erik Hörnfeldt under Creative Commons license