Court weighs phone searches
Justices appear split on whether police can search arrestees’ mobile devices.
WASHINGTON — Confronting a right-to-privacy question in the era of smartphones, the Supreme Court justices sounded closely divided Tuesday on whether police officers may search the mobile device of anyone they arrest.
For the second time in two weeks, the high court struggled with how to apply long-standing legal protections to new technologies. Last week, it was Aereo, a new TV streaming service that uses tiny rented antennas to avoid paying copyright fees to broadcasters.
On Tuesday, the debate focused on how to apply the 4th Amendment’s ban against “unreasonable searches” to smartphones, which many Americans use to store vast amounts of personal information. Justices heard arguments on two cellphone search cases, one from San Diego and the other from Boston.
Under current law, officers who make an arrest may check a suspect’s wallet, pockets, backpack or purse to look for weapons or evidence. They may also pick up a cellphone or smartphone. But justices were clearly divided on what should happen next.
Some suggested that phones should be fair game for police, treated the same as any other object carried by the person who is arrested. Other justices said police should be required to obtain search warrants before scanning the digital contents of smartphones because of the amount of private information they can hold.
Justice Elena Kagan, the newest and youngest member of the court, led the way in arguing for protecting privacy.
“People carry their entire lives on their cellphone,” she said. “A person could 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 … and could look at all of that person’s bank records, could look at all of that person’s medical data, could look at that person’s calendar … that person’s GPS and find out every place that person had been recently.”
Justice Samuel A. Alito Jr., President George W. Bush’s second appointee, staked out the opposite view. He cited the example of “an old-school guy” who carries a billfold with personal photos.
“What’s the difference between looking at hard-copy photos in a billfold and looking at photos that are saved in the memory of a cellphone?” Alito asked. While the digital world may allow for storing more photos, “I don’t see that there’s much of a difference.”
While Kagan and Alito set out contrary views, Justices Anthony M. Kennedy and Antonin Scalia said they were seeking a middleground rule that would allow police to search smartphones, but only when someone is arrested for a serious crime.
Scalia said police should be allowed to search phones, but only to find evidence “of the crime of arrest.” For example, if a suspect was put under arrest for selling drugs, an officer could check a phone for evidence that would link the suspect to drug crimes. But such powers would not extend to all arrests, Scalia said. If the arrest is for “not wearing a seat belt, it seems absurd that you should be able to search that person’s iPhone,” he said.
Stanford University law professor Jeffrey Fisher urged the court to rule that search warrants be required before officers looked through a smartphone, but he made little headway.
He represented David Riley, a San Diego man who was stopped in his car because of an expired license tag. Riley’s driver’s license was also suspended, and when an officer looked through his car, he found two loaded guns. Riley was put under arrest.
A search of the smartphone Riley was carrying revealed photos linking him to gangs and a drive-by shooting.
Riley was later charged and convicted of the gangrelated drive-by shooting, receiving a sentence of 15 years in prison.
The Supreme Court took up his case to decide only whether the search of his smartphone was reasonable and constitutional.
California Solicitor Gen. Edward DuMont said the police acted properly in Riley’s case because the search of the phone was triggered when the hidden guns were found.
“If police have a legitimate investigative purpose,” he said, “it seems to us that they should, at minimum, be able to look at the same kind of information they could have looked at in any other previous context: the address book, the contacts, the phone numbers.”
The court will decide the cases, Riley vs. California and United States vs. Wurie, by the end of June.