On Halloween weekend 2011, I heard Justices Breyer and Souter speak at a luncheon. Souter spoke about his resistance to technology. He described using pen and paper to draft opinions and recounted how a person had recently shown him an iPad set up to replay a Court argument. When Souter was done listening, he didn’t know how to turn it off, so he just stuck the thing, still talking, in a closet and closed the door.
Souter is no longer on the Court, but this is a tiny window into the technological savvy of the folks who will decide whether warrantless searches of cell phones are constitutional. It has been observed that some of the justices are more tech savvy than others. As Stephen Wermiel wrote here, “The Court is sometimes befuddled by what to make of different forms of technology, either as to how devices actually work or as to how to fit technology into particular legal doctrines, or both.” I wonder if the justices are among the 91% of Americans who own a cell phone. Do they email and text via phone, or receive electronic correspondence from doctors or banks? How deeply do they grasp how much private information flows through these devices?
For the first time, based on the arguments made today, SCOTUS will evaluate whether the 4th Amendment prohibits warrantless searches of cell phones incident to arrest. Two cases are before the Court. In the California case, Riley, the prior court said warrantless search incident to arrest was permissible. In the Massachusetts case, Wurie, the First Circuit said a warrant was required. (More background is included in my prior posts on this topic.)
The best summary of the facts of the California case is here in Amy Howe’s plain English summary, which relies brilliantly on the writing style of a well known children’s book:
“It was a series of events straight out of the children’s book If You Give a Mouse a Cookie – the Law and Order edition. The storyline goes something like this: If you are driving a car with expired tags, the police might pull you over. If they do, they will ask to see your driver’s license. When you give it to them, they will run a computer check and learn that it has been suspended. So they decide to impound the car. But before they tow the car away, they search it. When they search it, they discover two handguns under the hood, so they arrest you. When they arrest you, they take your smart phone. When they take your smart phone, they read your text messages. When they read the messages, they see texts which suggest that you might be a member of a local gang. Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.”
“At your trial, you ask the judge to bar the prosecutors from introducing the evidence obtained from your phone. But the judge rejects that request, ruling that the police could search your phone as part of the process of arresting you – a rule known as a “search incident to arrest.” So the evidence from your phone comes in at your trial, and – even though none of the four eyewitnesses that the prosecutors call can identify you as one of the shooters – you are convicted of attempted murder and assault with a semi-automatic firearm. And because of the evidence linking you to a gang, the seven-year sentence that you would have gotten is increased to fifteen years to life.”
In arguing to justify warrantless searches, the government asserts that phones should be subject to search incident to arrest because phones are “particularly likely to contain evidence of wrongdoing” and can be remotely wiped clean. Riley and Wurie counter that a seized phone can be held securely in a faraday bag (fun new word: “faraday bag”) that would prevent wireless communications unless and until a warrant is secured.
Think about the texts, emails, photos, contacts and calendar in your phone. While most of us don’t have a phone filled with “evidence of wrongdoing,” we have abundant personal information stockpiled there. The ability to rummage around in photos, calendars and contacts to investigate and see if anything incriminating turns up is exactly what police want. It is what police routinely do in California under the current state of the law. However, it is also precisely what the Fourth Amendment prohibits. Hopefully SCOTUS will adopt a bright line prohibition on warrantless cell phone searches.