<b><i>Online Extra</b></i> Justices Wary of Broad Authority for Cellphone Searches

The U.S. Supreme Court on April 29 appeared reluctant to give police sweeping authority to search the full contents of smartphones without first obtaining a search warrant from a judge.

During arguments in two cases raising a modern-day privacy issue, justices seemed unnerved by the potential scope of such searches, even as they struggled to decide how they could be limited without hampering valid police investigations.

Lawyers for both the United States and California warned the justices that a ruling forcing police to obtain search warrants in all or most cases would jeopardize safety and give criminal suspects time to encrypt or wipe out important information.

'It's an arms race between the forensic capabilities of law enforcement labs and the abilities of cellphone manufacturers and criminals to devise technologies that will thwart them,' Deputy Solicitor General Michael Dreeben told the court.

But the tenor of the two-hour discussion seemed clear, with justices across the spectrum ' all of whom appear to own cellphones ' voicing alarm at allowing police to rummage through devices that can carry a broad range of personal financial, medical and other data.

Their concern was that the same information, not long ago, would have been kept on paper at home, beyond the reach of police without a warrant.

'That protection should not evaporate more than 200 years later because we have the technological development of smartphones that have resulted in people carrying that information in their pockets,' said Stanford Law School professor Jeffrey Fisher, the main lawyer challenging phone searches without warrants.

Justice Elena Kagan said: 'Most people now do carry their lives on cellphones, and that will only grow every single year as, you know, young people take over the world.'

Kagan, who turned 54 last month, said giving police free rein to explore such personal data after being pulled over for not wearing a seat belt, for example, would go too far. 'That strikes me as a very different world,' Kagan said.

'It seems absurd that you should be able to search that person's iPhone,' Justice Antonin Scalia added, picking up on Kagan's hypothetical.

'Someone arrested for a minor crime has their whole existence exposed on this little device,' Justice Anthony Kennedy said.

Dreeben, who argued in both cases, picked up on the justices' concern and pivoted to give the court ways to limit the scope of phone searches while causing the least amount of harm to police.

'There are way stations and compromise positions,' said Dreeben, the federal government's leading appellate expert on criminal law and a veteran Supreme Court advocate.

The court could limit phone searches to data relevant only to the crime for which the owner of the phone was detained, Dreeben said. Kagan pointed out, however, that for someone arrested on a gun offense, police could deem a wide range of data to be worth searching. Dreeben also suggested a distinction could be made based on how serious the crime was, and limits could be placed on how long the data would be kept.

It also appeared possible that the court could rule differently in the two cases. Riley v. California, No. 12-132 involved a broad search of a smartphone, targeting photos and videos as well as phone information. Justices appeared less concerned about the other case, United States v. Wurie, 13-212 which involved an old-fashioned flip phone, where the search was limited to phone logs.

Dreeben and California Solicitor General Edward DuMont emphasized that court precedents have long allowed police to search arrestees and items in their pockets. They also said that the expectation of privacy is diminished when a person is under arrest.

As with many arguments involving modern-day technology, justices showed varying degrees of expertise. Asked at one point if he owned an iPhone, Breyer said he did not know 'because I can never get into it because of the password.'

Another exchange revealed that Chief Justice John Roberts Jr. and Justice Antonin Scalia may have lost touch with the practice of law, if not technology.

Roberts asked whether seeing someone with two cellphones in an area known for drug sales would raise enough suspicion for a police to make a search. Federal public defender Judith Mizner replied no, explaining that 'many people have multiple cellphones.'

'Really?' Roberts asked. 'What is your authority for the statement that many people have multiple cellphones on their person?'

When Mizner replied, 'Just observation,' Scalia cracked: 'You've observed different people from the people that I've observed.' It is not uncommon to see lawyers in DC and elsewhere juggling at least two cellphones ' though perhaps not in the presence of justices.

In the California case, San Diego police in 2009 detained David Riley for driving with expired tags. Police searched the car and found two concealed firearms and seized Riley's smartphone without a warrant. Stored text messages as well as photos and video led police to believe Riley had gang connections and was involved in prior gang-related crimes.

The other case originated in Boston, where police in 2007 arrested Brima Wurie on drug-trafficking charges. Without first obtaining a warrant, officers went through the call log on his phone and saw numerous calls from a number labeled 'my house.'

Using a reverse directory, they traced the address, obtained a warrant to search the house and found illegal drugs and firearms. In both cases the defendants sought to suppress the evidence at trial.

Tony Mauro covers the U.S. Supreme Court for ALM Media. He can be reached at'[email protected].

The U.S. Supreme Court on April 29 appeared reluctant to give police sweeping authority to search the full contents of smartphones without first obtaining a search warrant from a judge.

During arguments in two cases raising a modern-day privacy issue, justices seemed unnerved by the potential scope of such searches, even as they struggled to decide how they could be limited without hampering valid police investigations.

Lawyers for both the United States and California warned the justices that a ruling forcing police to obtain search warrants in all or most cases would jeopardize safety and give criminal suspects time to encrypt or wipe out important information.

'It's an arms race between the forensic capabilities of law enforcement labs and the abilities of cellphone manufacturers and criminals to devise technologies that will thwart them,' Deputy Solicitor General Michael Dreeben told the court.

But the tenor of the two-hour discussion seemed clear, with justices across the spectrum ' all of whom appear to own cellphones ' voicing alarm at allowing police to rummage through devices that can carry a broad range of personal financial, medical and other data.

Their concern was that the same information, not long ago, would have been kept on paper at home, beyond the reach of police without a warrant.

'That protection should not evaporate more than 200 years later because we have the technological development of smartphones that have resulted in people carrying that information in their pockets,' said Stanford Law School professor Jeffrey Fisher, the main lawyer challenging phone searches without warrants.

Justice Elena Kagan said: 'Most people now do carry their lives on cellphones, and that will only grow every single year as, you know, young people take over the world.'

Kagan, who turned 54 last month, said giving police free rein to explore such personal data after being pulled over for not wearing a seat belt, for example, would go too far. 'That strikes me as a very different world,' Kagan said.

'It seems absurd that you should be able to search that person's iPhone,' Justice Antonin Scalia added, picking up on Kagan's hypothetical.

'Someone arrested for a minor crime has their whole existence exposed on this little device,' Justice Anthony Kennedy said.

Dreeben, who argued in both cases, picked up on the justices' concern and pivoted to give the court ways to limit the scope of phone searches while causing the least amount of harm to police.

'There are way stations and compromise positions,' said Dreeben, the federal government's leading appellate expert on criminal law and a veteran Supreme Court advocate.

The court could limit phone searches to data relevant only to the crime for which the owner of the phone was detained, Dreeben said. Kagan pointed out, however, that for someone arrested on a gun offense, police could deem a wide range of data to be worth searching. Dreeben also suggested a distinction could be made based on how serious the crime was, and limits could be placed on how long the data would be kept.

It also appeared possible that the court could rule differently in the two cases. Riley v. California, No. 12-132 involved a broad search of a smartphone, targeting photos and videos as well as phone information. Justices appeared less concerned about the other case, United States v. Wurie, 13-212 which involved an old-fashioned flip phone, where the search was limited to phone logs.

Dreeben and California Solicitor General Edward DuMont emphasized that court precedents have long allowed police to search arrestees and items in their pockets. They also said that the expectation of privacy is diminished when a person is under arrest.

As with many arguments involving modern-day technology, justices showed varying degrees of expertise. Asked at one point if he owned an iPhone, Breyer said he did not know 'because I can never get into it because of the password.'

Another exchange revealed that Chief Justice John Roberts Jr. and Justice Antonin Scalia may have lost touch with the practice of law, if not technology.

Roberts asked whether seeing someone with two cellphones in an area known for drug sales would raise enough suspicion for a police to make a search. Federal public defender Judith Mizner replied no, explaining that 'many people have multiple cellphones.'

'Really?' Roberts asked. 'What is your authority for the statement that many people have multiple cellphones on their person?'

When Mizner replied, 'Just observation,' Scalia cracked: 'You've observed different people from the people that I've observed.' It is not uncommon to see lawyers in DC and elsewhere juggling at least two cellphones ' though perhaps not in the presence of justices.

In the California case, San Diego police in 2009 detained David Riley for driving with expired tags. Police searched the car and found two concealed firearms and seized Riley's smartphone without a warrant. Stored text messages as well as photos and video led police to believe Riley had gang connections and was involved in prior gang-related crimes.

The other case originated in Boston, where police in 2007 arrested Brima Wurie on drug-trafficking charges. Without first obtaining a warrant, officers went through the call log on his phone and saw numerous calls from a number labeled 'my house.'

Using a reverse directory, they traced the address, obtained a warrant to search the house and found illegal drugs and firearms. In both cases the defendants sought to suppress the evidence at trial.

Tony Mauro covers the U.S. Supreme Court for ALM Media. He can be reached at'[email protected].