WASHINGTON — Should the police's ability to search through your phone be a decision made on "an app-by-app basis"? That's one of the questions facing the Supreme Court in two cases the justices heard Tuesday.
The court will consider how changes in technology should affect the limits on searches of smartphones after arrest in the cases — and several justices expressed concerns at the court Tuesday about the broad range of information and services stored in today's phones.
"It has always been the case that an occasion of an arrest did not give the police officers authority to search through the private papers and the drawers and bureaus and cabinets of somebody's house," attorney Jeffrey Fisher argued Tuesday, in defense of David Leon Riley, who was found with photos and notes on his phone that police used to show involvement in gang-related activity. "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."
The justices are not likely to rule on the two cases — Riley's and that of Brima Wurie, which concerns drugs found by obtaining the defendant's home address through his flip phone — until June. But after arguments, a majority of the justices appeared to want some searches allowed, though aware that the breadth of information stored on smartphones today could make a bright-line rule allowing such post-arrest searches without a warrant to be constitutionally problematic.
Lawyers on both sides, as well, allowed that a completely ironclad rule in their direction wasn't necessarily possible or advisable.
On the defense side, the exception to a ban on searches for "exigent," or demanding, circumstances appeared to pick up some relevance with the justices. On the other side, the lawyers for the United States and California argued that the justices could craft an opinion with limiting principles, such as requiring certain justifications for a search or limiting the scope of the search, the duration of the search, or even whether the search could reach into data held in the cloud and not on the phone itself.
Nonetheless, the government lawyers were arguing for the broadest possible exemption for cell phone searches "incident to arrest," although California Solicitor General Edward DuMont gave a few answers that prompted Chief Justice John Roberts and Justice Samuel Alito to comment, as Alito worded it, that DuMont could "amend" his answer.
"Mr. Chief Justice, it's an arms race between the forensic capabilities of law enforcement labs and the abilities of cell phone manufacturers and criminals to devise technologies that will thwart them," Deputy Solicitor General Michael Dreeben, arguing for the United States, said at one point.
Despite the push for a rule — basically an extension of earlier Supreme Court cases allowing police to examine, for example, the contents of a cigarette package in a person's pocket after an arrest to the contents of a person's smartphone — Justice Stephen Breyer appeared open to avoiding any decision on the ultimate question, asking if it was possible for the questions presented in the case to be "be fed into the word 'exigency,' which we wouldn't have to decide now." The reason, Breyer continued, was that lawyers could then make arguments for exclusion or exclusion "in the context of — of what turns out to be the technology of the time."
Although Dreeben said such a decision would create problems for police in the field, the issue of whether the technology in theses cases will continue to be relevant in the future kept coming up in the case.
The second case, in fact, involved the police examination of the call log on a flip phone. When the phrase "my home" came up in an incoming call made to Brima Wurie, police examined the missed call, found the phone number associated with what Wurie had labeled "my home," searched a reverse directory to find the house, and went to the home in question — where they found drugs.
Whether a constitutional decision about flip phone technology will have long-term direct application seems unlikely, but the bigger picture was not lost on Wurie's lawyer, Assistant Federal Public Defender Judith Mizner. Although Mizner got tripped up a few times in sparring with the justices, she hit on a key question for the justices when debating with Alito and Justice Antonin Scalia about the nature of the Fourth Amendment's bar on unreasonable searches.
Talking about the earlier cases involving objects found in pockets of arrested people, Alito said that "in the predigital era, presumably people didn't have a reasonable expectation of privacy in ... things that they might be carrying on their persons" and that therefore examining such things after an arrest was not a search.
Mizner responded, "I believe it is a search, Justice Alito. It's a question of whether it is a search that has been justified by an exception to the warrant requirement."
Scalia shot back: "Why do you say they are an exception to the Fourth Amendment? ... [T]he Fourth Amendment covers certain things and it doesn't cover other things. The things that it doesn't cover are not ... exceptions. They're just things not covered."
At another point, in California's case against Riley, Dreeben made clear the difficulty of making constitutional rules when dealing with rapidly changing technology. When responding to Justice Sonia Sotomayor's questions about whether police are able to prevent remote harms coming to a phone by putting it in airplane mode, he replied, "The assumption that we're going to have airplane mode and that the court should craft a constitutional rule around airplane mode assumes that cell phones 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. I don't think the court should found a constitutional ruling on that assumption."
But the most likely outcome of the two cases was apparent in a question posed by Justice Anthony Kennedy to Fisher in his defense of the Riley case. "[I]f we rule for the government in its case in Wurie, in the federal case," Kennedy asked, "is there some standard where we could draw the line which would still result in a judgment in your favor?"
Fisher acknowledged that the answer was yes.
In fact, many of the "sometimes yes, sometimes no" solutions, as Breyer put it — from allowing the "exigent circumstances" exception for a search to be used on a case-by-case basis to setting "limiting principles" on a rule that would allow such searches without a warrant after an arrest — would lead to such a divergent ruling in the two cases. Sotomayor even floated another possibility, in which a "plain view" exception would be made, allowing some basic viewing of information on smartphones but not more in-depth searches.