Jose Luis Magana/AP
A Supreme Court visitor takes pictures with his cell phone outside the Supreme Court in Washington, Tuesday, April 29, 2014, during a hearing. The Supreme Court is considering whether police may search cellphones found on people they arrest without first getting a warrant.

Supreme Court appears wary of carte blanche for cellphone searches

The Supreme Court justices confronted a government request for the warrantless search of cellphones of individuals being arrested, even for minor crimes like jaywalking or failing to wear a seatbelt.

A wary US Supreme Court on Tuesday confronted a government request for a rule that would allow law enforcement officials to conduct warrantless searches of the contents of any cellphone found on an individual being placed under arrest.

The rule would apply for any arrest, including for minor crimes like jaywalking or failing to wear a seatbelt.

The issue is forcing the justices to confront the Fourth Amendment consequences of allowing law enforcement officials to seize a smart phone and instantly gain access to a person’s entire life – from e-mails, photos, videos, to bank records, medical bills, and even tax returns.

Law enforcement officials would be able to examine and potentially download into a government computer a treasure trove of highly personal information – all because the arrested suspect failed to use a designated crosswalk or tossed a scrap of paper on a public street.

“Your argument … applies to any arrest. And it applies to everything on a cellphone,” Justice Elena Kagan told California Solicitor General Edward Dumont.

“People carry their entire lives on cellphones,” she said. “That’s the world we live in.”

The issue arose in two different cases heard in back-to-back oral argument sessions Tuesday morning. One involved the cellphone search of a suspected criminal gang member in San Diego, the other involved the cellphone of an alleged drug dealer in Boston.

The Fourth Amendment’s prohibition on unreasonable searches requires the government to obtain a warrant from a neutral judge before intruding into private aspects of someone’s life.

But the courts have long recognized exemptions to the warrant requirement – including in searching any containers seized during the lawful arrest of an individual.

Specifically, the question before the court is whether the seized-container exemption to the warrant requirement applies to the contents of a cellphone, tablet, computer, or other digital device found in the possession of an arrestee at the time he or she is taken into custody.

The Obama administration and the California solicitor general argue that no warrant is necessary in searches related to arrests. They say the subsequent search of a cellphone’s contents should be covered by that same exemption.

The exemption is justified to facilitate quick and efficient searches of a suspect to identify any concealed weapons that might threaten officer safety and to prevent destruction of any evidence of crime.

Critics of such an exemption say there is no reason police can’t secure a cellphone from an arrestee and hold it long enough to obtain a warrant from a neutral judge authorizing a search of the phone.

Several justices seemed to agree.

Justice Ruth Bader Ginsburg questioned why the government objected to applying for a warrant to search the contents of the phone.

“You can seize the phone and you can secure the phone, and you could go to a magistrate and within an hour get permission to search,” she told Deputy Solicitor General Michael Dreeben. “What is the reason for cutting out the magistrate here?”

Mr. Dreeben said: “The balance has always been struck at the moment of arrest to allow the officers to fulfill their compelling interests [to search for evidence of a crime].”

He said in some cases a third party might try to digitally wipe the cellphone clean to destroy any incriminating information on a seized cellphone. He admitted there were no cases of it actually happening, but he said the FBI is concerned about the prospect.

The justices seemed unconvinced. Several asked if there was a limiting principle that could be applied to potential searches of cellphones.

Dreeben said the court could limit any cellphone search to evidence related to the crime of arrest and thus bar police from simply grazing through the entire contents of a cellphone for evidence of another crime.

But he added that even if police obtained a search warrant they would still likely conduct a cursory search of everything on the cellphone to see if it was related to the crime of arrest.

Justice Kagan responded: “They would be looking at the same things, but the whole idea of a warrant is that a neutral magistrate tells you that you can look at those things and has an opportunity to limit it in whatever way the neutral magistrate feels is appropriate.”

Kagan noted that modern cellphones have as much computing capacity as a laptop had five years ago.

“Most people do carry their lives on cellphones, and that will only grow every single year as, you know, young people take over the world,” she said.

The comment drew laughter in the courtroom.

Justice Antonin Scalia expressed concern about granting carte blanche to law enforcement to search cellphones. He noted the suspect arrested for failing to wear a seatbelt.

“It seems absurd that you should be able to search that person’s iPhone,” Justice Scalia said.

He suggested limiting any search to information related to the crime of arrest would allow police to continue to gather evidence in major criminal cases, while eliminating searches for relatively minor offenses.

“We think that could be a perfectly sensible ruling,” said Mr. Dumont, the California solicitor general.

Stanford Law Professor Jeffrey Fisher urged the court to reject any limiting principle and require the police to obtain a warrant in every cellphone search.

He said in the case of someone arrested for driving with a suspended license police could argue that they would need to search for any relevant e-mails on the possibility that the arrestee had received – and ignored – a notice from the DMV advising him to renew.

“If that opens up every American’s entire life to the police department,” he said, “not just at the scene but later at the station house and downloaded into their computer forever, I think you will fundamentally have changed the nature of privacy that Americans fought for at the founding of the Republic and that we’ve enjoyed ever since.”

The two cases stem from criminal prosecutions involving key evidence obtained during warrantless searches of seized cellphones.

Brima Wurie was charged and convicted of drug dealing in Boston. Police used the call log on his cellphone to identify a location where he allegedly kept drugs, money, and a weapon. He was sentenced to 22 years in prison.

A federal appeals court reversed part of his conviction because police did not obtain a warrant before searching the content of his cellphone.

David Riley was pulled over in a traffic stop. His car was impounded when the officer noticed Mr. Riley’s license was suspended. During a search of the impounded car, officers found two weapons. They then placed Riley under arrest. As part of the arrest they seized his cellphone and examined the contents for any possible evidence of crime.

Officers found indications in photos, video, and text stored in the phone that Riley was a member of a criminal gang. They used the information from the phone to link Riley to a gang-related incident in which shots were fired into a passing car.

Riley was convicted and sentenced to 15 years to life in prison. A state appeals court upheld the conviction, citing a California Supreme Court ruling that police do not need to obtain a warrant before searching the content of a cellphone seized during a lawful arrest.

The cases are Riley v. California (13-132), and US v. Wurie (13-212).

A decision is expected by late June.

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