The Supreme Court Grapples With the Fourth Amendment in the Smartphone Age

Oral argument from the court.
April 29 2014 6:59 PM

Our Cellphones Are Us

The Supreme Court tries to reconcile the Fourth Amendment with the realities of our tech age.

140429_scd_cellphone_driving
Should being pulled over for a traffic violation make your smartphone fair game for a police search?

Shutterstock

What we know for sure on April 29, 2014: Approximately 90 percent of Americans have cellphones, including Justice Stephen Breyer. Twelve million people are arrested every year, the great majority of them for minor offenses.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

What we don’t know for sure on April 29, 2014: Whether encryption is a serious problem for police officers attempting to search your cellphone; what, precisely encryption means (Justice Breyer describes encryption today as “some kind of system that once it goes ‘bzzz,’ you never can get the stuff again”); and what kind of cellphone Justice Breyer actually owns. As he explained it this morning, “I don't know … because I can never get into it because of the password.”

Oral arguments in a pair of Fourth Amendment cases—Riley v. California and United States v. Wurie—reveal that, despite Breyer’s old man act, the justices are actually pretty savvy about the technology involved in cellphones, iPads, and tablets. What they are less certain about is how that technology will change in the very near future.

Advertisement

The Fourth Amendment prohibits the government from conducting “unreasonable searches and seizures.” But years of case law have established that the police can conduct a warrantless search at the time of an arrest to protect their own safety, or to prevent the destruction of evidence. In both cases today, the police searched a suspect’s cellphone in the course of an arrest (Riley, in California, had a smartphone; Wurie, arrested in Boston back in the Paleozoic era of 2007, had a flip phone). In both cases the phone searches led cops to evidence of much more serious crimes. Riley, who’d been stopped for expired tags, was eventually linked, by way of photos and videos on his phone, to a gang shooting and convicted on serious weapons and gang charges. Wurie was arrested for dealing drugs, but a police search of his call log led the cops to his home where piles of more drugs were found. The California courts sided with the police in Riley’s case; in Boston, a federal appeals court sided with Wurie. The question in each case: Can the police search your phone, without a warrant, any time they arrest you?

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. There is little attempt to try to cram these facts into the James Madison time machine. No talk of tiny constables, as we heard in the GPS case. Most of the court agrees that there is no way the framers could have anticipated this “new world,” as Justice Kennedy describes it: a world in which “the fact that someone arrested for a minor crime has their whole existence exposed on this little device.”

Stanford Law School’s Jeffrey Fisher represents Riley in the first case, and as he explains to the justices, the Framers denied police officers authority “to search through the private papers and drawers and bureaus and cabinets of somebody's house, and that protection should not evaporate more than 200 years after the founding” because technology has given Americans the ability to “carry that information in their pockets.”

Justice Samuel Alito asks Fisher, “What if your client was an old-school guy and he didn't have a cellphone. He had a billfold and he had photos that were important to him in the billfold. Do you dispute the proposition that the police could examine the photos in his billfold?” Fisher concedes that this would be a permissible search, in part to search for a razor or pin that could be used to hurt the officer. But a phone is different, he presses, because “digital information … implicates vast amounts of information, not just the photos themselves, but the GPS locational data that's linked in with it, all kinds of other information that is intrinsically intertwined in smartphones.” This, notes Fisher, is why the police should have to get a warrant, as they do for other searches. Fisher adds that “it's not just what can be looked at; it's how it can be kept. ... My understanding in California is, at least for some crimes, it's not just that they're downloading the information … they're keeping this information in ever-growing databases of every cellphone that they've ever seized.”

Justice John Roberts evinces a keen understanding of the workings of Facebook, Twitter, Fitbit, and other apps. Fisher tells him that Fitbit raises the same issues as the thermal imaging system that worried the court in an earlier drug case, when it ruled that cops scanning a home with infrared technology and no warrant violated the Fourth Amendment: “Modern smartphones,” Fisher explains, “work the inside of people's house. They work the appliances and—and they have cameras. They also monitor the inside of people's bodies.” Justice Anthony Kennedy wonders why the most recent discussion of whether cops can search someone’s briefcase and diaries comes from a 1916 case. Fisher has an answer: “The reason I think you don't find [diaries] is because people hardly ever carry a diary outside the home with them. It was kept in a private drawer in the bedroom.” He contrasts this with “the modern reality of smartphones,” which are “an indispensable item for everyday life.” Justice Scalia asks Fisher if the cops can answer the phone if it rings in the middle of an arrest. Fisher says yes.

TODAY IN SLATE

War Stories

The Right Target

Why Obama’s airstrikes against ISIS may be more effective than people expect.

Why Is This Mother in Prison for Helping Her Daughter Get an Abortion?

The XX Factor
Sept. 23 2014 11:13 AM Why Is This Mother in Prison for Helping Her Daughter Get an Abortion?

Divestment Is Fine but Mostly Symbolic. There’s a Better Way for Universities to Fight Climate Change.

I Stand With Emma Watson on Women’s Rights

Even though I know I’m going to get flak for it.

It Is Very Stupid to Compare Hope Solo to Ray Rice

Building a Better Workplace

In Defense of HR

Startups and small businesses shouldn’t skip over a human resources department.

It’s Legal for Obama to Bomb Syria Because He Says It Is

How Ted Cruz and Scott Brown Misunderstand What It Means to Be an American Citizen

  News & Politics
War Stories
Sept. 23 2014 4:04 PM The Right Target Why Obama’s airstrikes against ISIS may be more effective than people expect.
  Business
Moneybox
Sept. 23 2014 2:08 PM Home Depot’s Former Lead Security Engineer Had a Legacy of Sabotage
  Life
Outward
Sept. 23 2014 1:57 PM Would a Second Sarkozy Presidency End Marriage Equality in France?
  Double X
The XX Factor
Sept. 23 2014 2:32 PM Politico Asks: Why Is Gabby Giffords So “Ruthless” on Gun Control?
  Slate Plus
Political Gabfest
Sept. 23 2014 3:04 PM Chicago Gabfest How to get your tickets before anyone else.
  Arts
Brow Beat
Sept. 23 2014 4:45 PM Why Is Autumn the Only Season With Two Names?
  Technology
Future Tense
Sept. 23 2014 1:50 PM Oh, the Futility! Frogs Try to Catch Worms off of an iPhone Video.
  Health & Science
Science
Sept. 23 2014 4:33 PM Who Deserves Those 4 Inches of Airplane Seat Space? An investigation into the economics of reclining.
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.