California’s Solicitor General Edward DuMont rises to defend the right of cops to search your phone when they arrest you. He says there is no difference between the police searching the paper pictures in your pocket and the digital photos on your phone. Justice Elena Kagan stops him right there: “A person can be arrested for anything. A person can be arrested for driving without a seat belt. 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, camera ... GPS. … Now, that strikes me as a very different 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?”
DuMont insists that this sort of cellphone use is “marginal” but Kagan stops him. “You call it marginal, but, in fact, most people now do carry their lives on cellphones, and that will only grow every single year as, you know, as young people take over the world.”
Chief Justice John Roberts asks DuMont, “Is there any basis for the generality that there's a safety concern? Do you have a case, not where the phone exploded, but when the phone was used to trigger a device or anything like that?” DuMont says no. Then he loses the NRA vote when he describes a case in which a cellphone photo of the driver standing arms akimbo with his assault rifles justified a police search to protect the officer’s safety. DuMont keeps talking over Kagan until the chief justice gets mad. Breyer asks DuMont to choose a rule for the court: The first is that cops always need a warrant to search a smartphone, the second is that they never need one. The third? “Sometimes yes, sometimes no.” DuMont chooses door No. 3, but Breyer persuades him to fess up and change it to the second—they never need one.
The justices, on the other hand, seem to be leaning toward door No. 3: some rule that lets the cops search cellphones in serious cases but not for jaywalking. Justice Kennedy suggests that the “distinction ought to be between serious and non-serious offenses.” Alito suggests the rule could be that you need no warrant to search for something with “a close analogue in the digital era to something that would have been allowed in the predigital era.” And Justice Scalia suggests that you could search a phone without a warrant “for evidence of the crime of arrest.” As he explains, “That will cover the bad cases, but it won't cover the seat belt arrest.”
Kagan seems mystified that the new constitutional rule may be that “one has to keep one's cellphone at home to have an expectation of privacy in it?” Because doesn’t that make it a home phone? And Breyer then inexplicably admits that he carries around a paper GPS system: “I don't want to admit it, but my wife might put a little note in my pocket."
Next comes Deputy Solicitor General Michael Dreeben, who sides with the police searches and introduces several variations on the “bzzz” argument: that bad guys can wipe their phones remotely, lock their phones remotely, and signal their confederates remotely, all creating an exigent need for the police to search phones instantly upon arrest. There is some talk of something called a Faraday bag, in which cops can store phones to stave off remote zapping, but, Faraday or no, Dreeben insists that the police need to search your phone right now. Sotomayor asks why the cops can’t just set the phone to airplane mode and get a warrant. The answer is: No!
Dreeben will go on to argue the second case, about flip phones, which principally raises the constitutional question of why the court agreed to hear a case about flip phones. (It’s certainly possible that Justice Breyer has one, and just can’t figure out the password.) Either way, the Wurie case goes poorly for the Fourth Amendment, raising some possibility that the searches are to be deemed legal on flip phones and illegal on smartphones. Either way, the justices acquit themselves remarkably well both on the technology front, and in understanding how fast the technology is moving. They appear to be trying to craft a constitutional compromise that fully appreciates that what we carry around in our back pocket is more substantial than Thomas Jefferson’s entire library, and also that criminals can’t be allowed to hide behind new technologies, as the law struggles to catch up.
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