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.
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.
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.