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Column: Searching for an middle ground on cellphone searches

What we know for sure today: Approximately 90 percent of Americans have cellphones, including Justice Stephen Breyer. Twelve million people are arrested every year, the great majority of them for minor offenses.

What we don't know for sure: Whether encryption is a serious problem for police officers attempting to search your cellphone; what, precisely encryption means (Justice Breyer describes encryption today as "some kind of system that once it goes 'bzzz,' you never can get the stuff again"); and what kind of cellphone Justice Breyer actually owns. As he explained it in oral arguments, "I don't know … because I can never get into it because of the password."

Oral arguments in a pair of Fourth Amendment cases — Riley vs. California and United States vs. Wurie — reveal that, despite Breyer's old man act, the justices are actually pretty savvy about the technology involved in cellphones, iPads and tablets.

The Fourth Amendment prohibits the government from conducting "unreasonable searches and seizures." But years of case law have established that the police can conduct a warrantless search at the time of an arrest to protect their own safety or to prevent the destruction of evidence. In both cases, the police searched a suspect's cellphone in the course of an arrest (Riley, in California, had a smartphone; Wurie, arrested in Boston back in the Paleozoic era of 2007, had a flip phone). In both cases the phone searches led cops to evidence of much more serious crimes.

Riley, who'd been stopped for expired tags, was eventually linked, by way of photos and videos on his phone, to a gang shooting and convicted on serious weapons and gang charges. Wurie was arrested for dealing drugs, but a police search of his call log led the cops to his home where piles of more drugs were found. The California courts sided with the police in Riley's case; in Boston, a federal appeals court sided with Wurie. The question in each case: Can the police search your phone, without a warrant, any time they arrest you?

The problem for the court is that they don't much like the prospect of allowing the cops to search jaywalkers' cellphones for evidence of anything bad they've ever engaged in. But at the same time, the justices also don't want to hamstring the police who claim that if they can't search cellphones, they will be in danger, and major crimes will go unsolved.

Stanford Law School's Jeffrey Fisher represents Riley, and as he explained to the justices, the Framers denied police officers the authority "to search through the private papers and drawers and bureaus and cabinets of somebody's house, and that protection should not evaporate more than 200 years after the founding" because technology has given Americans the ability to "carry that information in their pockets."

California's Solicitor General Edward DuMont rose to defend the right of cops to search your phone when they arrest you. He says there is no difference between the police searching the paper pictures in your pocket and the digital photos on your phone. Justice Elena Kagan stops him right there: "A person can be arrested for anything. A person can 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, including work emails, including emails to family members, very intimate communications, could look at all that person's bank records, could look at all that person's medical data, camera … GPS. … Now, that strikes me as a very different than the kind of world that you were describing where somebody has pictures of their family in a billfold. Doesn't it strike you that way?"

Breyer asks DuMont to choose a rule for the court: The first is that cops always need a warrant to search a smartphone, the second is that they never need one. The third? "Sometimes yes, sometimes no." DuMont chooses door No. 3, but Breyer persuades him to fess up and change it to the second — they never need one.

The justices, on the other hand, seem to be leaning toward door No. 3: some rule that lets the cops search cellphones in serious cases but not for jaywalking. Justice Anthony Kennedy suggests that the "distinction ought to be between serious and nonserious offenses." And Justice Antonin Scalia suggests that you could search a phone without a warrant "for evidence of the crime of arrest." As he explains, "That will cover the bad cases, but it won't cover the seat belt arrest."

The justices appear to be trying to craft a constitutional compromise that fully appreciates that what we carry around in our back pocket is more substantial than Thomas Jefferson's entire library, and also that criminals can't be allowed to hide behind new technologies, as the law struggles to catch up.

© 2014 Slate

Column: Searching for an middle ground on cellphone searches 04/30/14 [Last modified: Wednesday, April 30, 2014 7:23pm]
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