New York Times

Justices Appear Divided on Cellphone Warrants

By ADAM LIPTAK APRIL 29, 2014

WASHINGTON — The Supreme Court on Tuesday seemed torn as it considered
a pair of cases about whether the police need warrants to search the cellphones
of people they arrest.

Some justices seemed inclined to apply precedents strictly limiting the
privacy rights of people under arrest. Those decisions say warrantless searches in
connection with arrests are justified by the need to find weapons and to prevent
the destruction of evidence.

“Our rule has been that if you carry it on your person, you ought to know it is
subject to seizure and examination,” Justice Antonin Scalia said.

Other justices said the vast amounts of data held on smartphones may
require a different approach under the Fourth Amendment, which bars
unreasonable searches.

“We’re living in a new world,” Justice Anthony M. Kennedy said. “Someone
arrested for a minor crime has their whole life exposed on this little device.”

Several justices noted that modern smartphones contain troves of private
materials, including bank and medical records.

“Most people now do carry their lives on cellphones,” Justice Elena Kagan
said, “and that will only grow every single year as young people take over the
world.”

Justice Sonia Sotomayor added that the court’s decisions in the cases argued
Tuesday would almost certainly apply to tablet computers and laptops seized at
the time of arrest.

But Chief Justice John G. Roberts Jr. said phones also contained
“information that is specifically designed to be made public,” mentioning
Facebook and Twitter.

The pace of change, Justice Samuel A. Alito Jr. said, made the justices’ jobs
very difficult.

“Smartphones do present difficult problems,” he said, later asking: “So how
do we determine what the new expectation of privacy is now?”

The justices proposed various ways to allow searches of cellphones, or parts
of them, after some but not all arrests. One idea that seemed attractive to several
of them was to limit searches when the arrest was for a minor crime.

“A person can be arrested for driving without a seatbelt,” Justice Kagan
said. “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, could look at that person’s
calendar, could look at that person’s GPS.”

Examples like that seemed to trouble Justice Kennedy, who said the police
could obtain “the tax return of the jaywalker” they arrested.

“Maybe the distinction ought to be between serious and nonserious
offenses,” he said. He acknowledged that the approach would be a change. “I
don’t think that exists in our jurisprudence,” he said.

Justice Scalia pressed a related approach, suggesting that searches could be
limited to information relevant to the crime for which the person was arrested.

“That will cover the bad cases,” he said, “but it won’t cover the seatbelt arrest.”

In Tuesday’s first case, Riley v. California, No. 13-132, a state appeals court
in California allowed a search of David L. Riley’s smartphone after he was pulled
over for having an expired auto registration. The police found loaded guns in the
car and, on inspecting Mr. Riley’s smartphone, entries they associated with a
street gang.

In the second case, United States v. Wurie, No. 13-212, the federal appeals
court in Boston in May threw out evidence gathered after the police there
inspected the call log of a drug dealer’s rudimentary flip phone.

Jeffrey L. Fisher, one of Mr. Riley’s lawyers, warned the justices to think
hard about a decision he said could fundamentally change “the nature of privacy
that Americans fought for at the founding of the Republic and that we’ve enjoyed
ever since.”

Justice Alito asked why digital information should be treated differently
from its tangible equivalents.

“What is the difference between looking at hard-copy photos in a billfold
and looking at photos that are saved in the memory of a cellphone?” he asked.

Mr. Fisher responded that data are different. “Even the notion of flipping
through photos in a smartphone implicates vast amounts of information,” he
said, “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.”

Much of the argument concerned whether immediate searches were
required to keep police officers safe and to prevent the destruction of evidence.

“Why can’t you just put the phone on airplane mode?” Justice Sotomayor
asked.

Michael R. Dreeben, a deputy solicitor general, responded that police
officers should not be expected to know how to operate “the 500, 600 models of
phones that are out there.”

He also urged the justices to avoid fashioning a constitutional principle
based on fast-evolving technologies. Justice Sotomayor’s question assumed, he
said, “that cellphones 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.”

The justices seemed less persuaded by the prospect that a phone might be
used to summon confederates or to detonate a bomb.
“I would assume you need to operate the phone to set off the bomb, so that
once the police have the phone the bomb is not going to be set off,” Justice
Sotomayor said.

Chief Justice Roberts pressed Mr. Dreeben and California’s solicitor general,
Edward C. DuMont, for examples of phones that had detonated bombs or had
been remotely erased. He heard nothing concrete in response.

But the justices seemed receptive to a general point from Mr. Dreeben.

“It’s an arms race between the forensic capabilities of law enforcement labs
and the abilities of cellphone manufacturers and criminals to devise technologies
that will thwart them,” he said. “And they will leapfrog each other.”

The justices seemed to have varying degrees of familiarity with their phones’
capabilities. Mr. Dreeben said he did not know whether Justice Stephen G.
Breyer had an iPhone.

“I don’t, either,” Justice Breyer responded, “because I can never get into it
because of the password.”

A version of this article appears in print on April 30, 2014, on page A15 of the New York edition with the
headline: Justices Appear Divided on Cellphone Warrants.