Applying centuries-old constitutional principles to situations not contemplated by the Founding Fathers is nothing new for the justices of the U.S. Supreme Court.
But that doesn’t make it easy, as was clear during two hours of oral argument Tuesday in cases testing the Fourth Amendment’s limits on cellphone searches.
The attorneys arguing in U.S. v. Wurie and Riley v. California urged the court to draw a bright line with respect to police’s ability to search the contents of arrestees’ cellphones. Attorneys for the government urged the justices to rule that such searches are allowed under the incident-to-arrest exception, while defense attorneys asked the court to find such searches unreasonable absent a warrant or specific exception.
But several justices expressed a desire to proceed more cautiously and draw a line somewhere in the middle, given the fast-evolving technology of cellphones, the vast amount of personal information contained within them, and the speed with which that information — which may include evidence of a crime — can be erased.
“We’re living in a new world,” Justice Anthony Kennedy said. “[S]omeone arrested for a minor crime [can have] their whole existence exposed on this little device.”
The defendant in U.S. v. Wurie, Brima Wurie, was arrested by Boston police for selling drugs. At the police station officers seized two phones from him. While in the police’s possession, one of the phones rang repeatedly and displayed “my house” on its external screen. Officers opened the phone, pressed a button to view the call log, traced the phone number identified as “my house” to an address and obtained a search warrant for the premises, where they found drugs, a firearm and ammunition.
Wurie was charged with drug and firearm offenses. He sought to suppress the evidence from the search of his home, arguing that it stemmed from an unlawful search of the contents of his cellphone. A federal district court denied the motion, but the 1st U.S. Circuit Court of Appeals reversed.
Riley v. California stems from a traffic stop in San Diego, California. David Riley was arrested on firearm charges and his smartphone was seized. An officer searched the phone and found pictures of Riley making gang signs, text messages using gang lingo and other communications linking him to an earlier shooting.
The Supreme Court granted certiorari separately, but scheduled arguments in tandem.
During those arguments, the justices asked the attorneys to analogize cellphones to a host of other items to which a Fourth Amendment analysis may be applied: diaries; wallets and billfolds, compact disks, briefcases, laptops and iPads. They even considered if the type of cellphone searched informed the analysis, meaning that the outcome in Wurie, which involved the search of an old flip-top phone, could be different from the resolution in Riley, where a smartphone was searched.
Vast amount of ‘personal and private information’
Boston-based federal public defender Judith Mizner represented Wurie. She argued that although courts have ruled that obtaining information like call logs, which can be obtained from cellphone carriers, does not require a warrant, cellphone searches are different. Call log information on phones “contain more than simply the numbers dialed,” Mizner said.
“You have the associational information that’s created by the user” identifying who each number belongs to, she said. “In this case, it was linking ‘my house’ to a particular number.”
Justice Samuel Alito Jr. noted that the Fourth Amendment allows searches of homes incident to arrest, and information possessed by phone companies, such as the numbers dialed from an account, does not require a warrant.
If the call log is not covered by a reasonable expectation of privacy, and ‘my house’ is not covered by a reasonable expectation of privacy, then where’s the search?” he asked.
“The phone itself if covered by a reasonable expectation of privacy, Mizner said.
Alito wasn’t sure the text of the Fourth Amendment made the answer so clear.
“Are we trying to answer an empirical question, [which is] what is the reasonable expectation of privacy of a person in 2014 who has a cellphone on his or per person,” Alito asked, “or are we legislating what we think is a good privacy rule?”
“The court is determining whether or not in 2014 an individual has a reasonable expectation of privacy against government intrusion into a device that carries around an increasingly large percentage of somebody’s personal and private information,” Mizner said.
Jeffrey Fisher, a professor at Stanford Law School in Stanford, California, argued on Riley’s behalf that police have no more right to search a cellphone without a warrant than they have to rifle though private papers in the drawers of an individual’s home. And cellphones contain for more information, Fisher argued, making the expectation of privacy even greater.
“That protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their pockets,” Fisher said.
Kennedy asked if there was a way for the court to generally allow searches of cellphones, but “draw the line which will still result in a judgment in your favor?”
Fisher said there was not, continuing, “we have an exploratory search [here] where not even the state has contended the amount of information looked at is equivalent to what somebody could have carried around in the old days.”
In Wurie, Deputy U.S. Solicitor General Michael Dreeben argued that “any categorical rule that would preclude searches of cellphones incident to arrest would be inconsistent with historical practice and detrimental to law enforcement.”
But Justice Stephen G. Breyer pointed out that a general warrant requirement for searches with certain exceptions for exigent circumstances could be an easy rule to apply.
“You don’t need a special rule, other than the rule ‘get a warrant,’” Breyer said.
But Dreeben disagreed.
“That rule completely compromises the interests [of the] search incident to arrest” exception, Dreeben said. Allowing searches in this situation serves police’s interest in “discovering evidence that could help them in the prosecution, protecting [police] safety, and avoiding [evidence] destruction.”
California Solicitor General Edward DuMont, arguing in the Riley case, compared the search of cellphone photographs to a search of a wallet or billfold which also happens to contain pictures of a suspect’s children.
Justice Elena Kagan pointed out that cellphones contain far more data, from calendars to bank statements and GPS location data.
“Could [police] look at that person’s GPS and find out every place that person has been because that person was arrested for driving without a seat belt?” she asked. “That strikes me as a very different kind of world [than] searching pictures of family in a billfold.”
“One can always think of marginal case where that might be a concern,” DuMont replied.
“People carry their entire lives on cellphones,” Kagan said. “That’s not a marginal case. That the world we live in.”
A decision is expected later this term.Follow @dcdicta