The Supreme Court heard oral arguments Tuesday in two cases tackling the same difficult question: If you get arrested, should the police be allowed to search your cellphone without a warrant?
It’s well-established that police can search people they arrest to ensure they don’t have a weapon and to prevent them from destroying evidence. Police can also search things on or within easy reach of suspects, like wallets or address books, for evidence relating to the crime for which they were arrested.
But those standards were set long before people started carrying their lives around on computers in their pocket. Lower courts have split on whether cellphones can be searched without a warrant after an arrest and how much information can be taken off of them and stored.
The first case the court heard Tuesday was brought by David Leon Riley, who was stopped in August 2009 for driving with expired license plates. A legal search of his car found handguns, and he was arrested. A couple of hours later, police searched his smartphone without getting a warrant and found photo evidence of his alleged involvement in a gang shooting. The California courts ruled against Riley’s argument that the smartphone evidence should be excluded because it had been gathered in an illegal search.
Riley’s lawyer, Jeffrey Fisher, argued Tuesday that there’s now so much information in a smartphone, there’s a danger police will go on a fishing expedition to find crimes, against which Americans enjoy broad Fourth Amendment protections. Fisher further pointed out that the government has acknowledged in court filings the FBI’s collection and storing of telephone metadata from phones seized in similar arrests in an ever-growing database. Even the hawkish Justice Antonin Scalia said Tuesday that “It seems absurd that you should be able to search [the entire contents of a person’s] iPhone” without a warrant after a simple traffic stop.
The second case the court heard Tuesday was originally brought against Brima Wurie in 2007 after his arrest in Boston, Mass. for selling crack cocaine from a car. Wurie convinced an appeals court that prosecutors should have been blocked from telling jurors police had found drugs, cash and guns at his house after determining his home address by checking his incoming call records on his flip phone. The appeals court ruled the cell phone search was illegal. Wurie’s lawyer argued Tuesday that even a small amounts of information on a cellphone should be protected against a warrantless search.
The Roberts court has often ruled in favor of cops in questions of searches and seizures, and there was plenty of sympathy for the needs of law enforcement during the arguments Tuesday. But the justices have also struggled with technological issues brought on by what they like to call “the digital age.” Several justices asked questions about the FBI’s long-term storage of data downloaded from seized cell phones through the use of a so-called “Universal Forensic Extraction Device,” for example.
The justices acknowledged that privacy expectations are diminished when you’re arrested. The question that they seemed to be wrestling with most was how to limit the amount of data that can be taken from a smartphone after a routine arrest. The government argued it should depend on the type of crime for which the person had been arrested. But even the pro-enforcement Chief Justice John Roberts admitted that “it’s very hard to see how that limit would be applied. You can see and the police would be able to articulate why almost every application, every entry on a cellphone would reasonably be anticipated to have evidence of a particular crime.”
Rulings in both cases could come by early June.