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The United States Supreme Court heard arguments today in a case that reaches into almost every American's pocket or purse. At issue is whether police can search cellphones without obtaining a warrant at the time of an arrest.
And as NPR legal affairs correspondent Nina Totenberg reports, the justices were clearly struggling to reconcile modern technology and traditional rules.
NINA TOTENBERG, BYLINE: The courts have long allowed police to search people without a warrant at the time of arrest. But those searches have been limited by the amount of information individuals could carry on their person. Now, suddenly, with the advent of the Smartphone, allowing a search of that phone without a warrant allows police to search more information than most people keep in their houses.
Privacy advocate, Andy Pincus.
ANDY PINCUS: They have some of our most personal thoughts. They have some of our most personal mementos in terms of pictures. And increasingly, because of apps that relate to health and financial services, they have some of our most personal information.
TOTENBERG: For that very reason, law enforcement sees cellphone searches as a treasure trove of information documenting criminal activity. And police fear that if they take time to get a search warrant, criminals will either wipe their cellphones clean or lock them.
Law enforcement advocate John Bursch says it's common for criminal rings to have...
JOHN BURSCH: Texts, pictures, all kinds of other important information on the phone that are not only important to solving the crime in the long run and making sure that the bad guys are convicted but might be necessary to protect someone right now.
TOTENBERG: The lead case before the Court today is an illustration of both the dangers and advantages of warrantless searches. It involves a traffic stop in San Diego. David Riley was pulled over for driving with expired tags. When his car was impounded and inventoried, police found guns under the hood. An initial search of Riley's cellphone indicated he might be involved in gang activity.
Two hours later, a gang specialist went through the digital files, downloaded contacts, videos, photos, et cetera, and some of that information was used to later convict Riley of several felonies.
At today's argument, Riley's lawyer, Jeffrey Fisher, told the justices that the Founding Fathers never intended to allow such wide-ranging searches without a warrant. The warrantless search at the time of arrest, he noted, was to protect the officer's safety and to prevent the destruction of evidence.
Chief Justice Roberts: If you're arresting someone on suspicion of being a gang member, what part of the cellphone is not likely to have pertinent evidence?
Fisher replied that it's not just what can be looked at, it's the fact that information from cellphones can be downloaded and kept in ever-growing databases. The beauty of the search warrant, he said, is not only that there is a neutral magistrate who reviews the warrant application and can limit the search, but the magistrate can also limit the retention of the downloaded information if it's not used to prosecute the crime.
Justice Kennedy turned to the question of diaries. Fisher said that there had been few, if any cases, in which - prior to the advent of cellphones - police seized a diary at the time of an arrest, because people didn't carry their diaries with them. Today, he said, we live in a world where everybody has everything with them at all times.
Including criminals, interjected Justice Kennedy; criminals who are more dangerous, more sophisticated, more elusive with cellphones.
Representing the police and prosecutors in the case was California solicitor general Edward Dumont. He noted that, as Justice Alito had observed, there is no doubt police could examine photos in a billfold at the time of an arrest. If that's a reasonable search that doesn't require a warrant, said Dumont, it doesn't become constitutionally unreasonable simply because Riley carried photos instead in digital form.
Justice Sotomayor interrupted to note that a billfold contains somewhere between one and five photos, versus a cellphone which contains potentially thousands.
Justice Kagan observed that a person can be arrested for anything, including driving without a seatbelt, and the police could search that person's the cellphone and look at every single email, including very intimate communications - could look at all that person's medical data, the person's calendar, the GPS to learn every place that person has been recently. Now, she said, that strikes me as a very different kind of world than the kind of world where somebody has pictures of their family in a billfold.
Answer: One can always think of marginal cases where there might be concern.
Kagan interrupted: You call it marginal? But in fact, most people now do carry their lives in their cellphones.
Justice Ginsburg: The Court has to make a rule here that works not just for Riley's case but for everyone who is arrested.
Justice Kennedy: Let's leave out emergency circumstances, he said, because police can always search in those cases. What's your rule?
Lawyer Dumont suggested that the cellphone can be searched as a tool to protect the officer's safety.
Chief Justice Roberts: Do you have any example where a phone was used to trigger a bomb or something like that?
Dumont said he did not have any such examples. But he pointed to a case where an officer became more alert when he stopped someone for speeding and saw on the cellphone a photo of the driver with guns.
Justice Kennedy, continued the search for a rule, asking about a distinction between serious and non-serious offenses. But Dumont noted that the Court has never been willing to make that distinction before.
Justice Scalia suggested that the rule could limit the search to material relevant to the crime for which the person is arrested.
The search for a rule continued with questions from Justice Breyer. Lawyer Dumont said no warrant should be required for information that is of the same sort that police have traditionally been able to seize without a warrant - diaries, letters, photographs.
Justice Kagan: That would mean absolutely everything, wouldn't it?
Justice Breyer: The problem here is the amount of information on cellphones.
Dumont replied that people make a choice when they carry their cellphones with them and should have no expectation of privacy if they're arrested.
Justice Kagan, incredulous: Are you saying one has to keep a cellphone at home to have an expectation of privacy in your cellphone?
Last up to argue in the Riley case was deputy solicitor general Michael Dreeben, representing the federal government. He repeatedly told the justices that the potential for destruction of evidence is real. And that law enforcement is very worried; in particular, about the sophisticated encryption on modern Smartphones, an encryption that in practice, he said, can mean that once a phone is locked, it will take months to unlock it if it's ever possible. He didn't offer examples but predicted an arms race between cops and criminals in the future over such technology.
A decision in the case is expected by late June.
Nina Totenberg, NPR News, Washington.
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