I don’t want to hear anything about the “puns” in the title. Just shut it.
As I wrote about extensively in this March 28th column in the Connecticut Law Tribune, the issue in these two cases is under what circumstances can police search the contents of your cell phone after they arrest you and what is the extent of those searches.
We’d all feared what a disaster the oral argument might turn out to be, given that the Court is made up of all really old people. Well, we need to put that aside because the Court came prepared. Aside from one really bizarre exchange about phone encryption, they were mostly spot on about the phone, the amount of content the phones have and the potential for danger if they permitted a blanket rule allowing searches.
The most heartening thing is that they got how we live our lives today: we pack every conceivable personal detail into a phone and it contains more data than the modern laptop does. They were attuned to that.
Based on my reading of the transcript, I think a rule permitting full searches of cell phones after every arrest is out. There just isn’t any support for that. The question then becomes is there support for the preferred rule that there should be no searches of cell phones unless the police get a warrant: the so-called “seize and hold” option.
I think, in the end, we’ll get something close to this. My sense was that all the liberal justices plus Kennedy were on board. But who the hell knows. Orin Kerr, writing at VolokhPost isn’t as convinced or heartened: he sees a middle ground, akin to what was enunciated in Arizona v. Gant: that searches for the instrumentality of the crime the person was being arrested for could be conducted without a warrant. Frankly I don’t see the support for that in the transcript: the problem is going to be implementation of such a rule.
Other observers of the argument are more cautiously optimistic, as I am: see this piece at Reason, for instance. I think the problem the Court will have with finding a majority for any of these middle ground positions is illustrated by this exchange between Justices Sotomayor, Kagan, Ginsburg and the attorney arguing for California:
JUSTICE SOTOMAYOR: Could I ask you a question about the extent of your theory? We’re talking about smartphones, which are minicomputers. But your theory would apply to iPads, computers, anything that’s, for example, sitting next to a person in a car, at their desk if they are arrested at their desk, anywhere if they are carrying it in their hand because you see a lot of people carrying the iPad or something comparable, a tablet of some sort. Your theory would permit a search of all of those things.
MR. DUMONT: Our theory extends to objects that are on the person or immediately associated with, for instance in a purse. It doesn’t necessarily extend to things that are sitting nearby. The Court has drawn a clear line there. It’s
JUSTICE GINSBURG: Well, how would you? What is the rule? You’re saying on the person. Suppose it’s in the car in a holder or suppose it’s in the passenger’s seat? Are you saying that’s you don’t want to express an opinion about that? You only want to talk about what’s in somebody’s pocket?
MR. DUMONT: I’ll say I think the Court has drawn different rules for that situation. If it’s on the car seat and if the person’s been removed from the car, then under Gant if there’s reason to think there might be evidence of the crime of arrest on the phone they can search it and if there’s not they can’t. That’s the rule the Court drew, but it’s a different rule Under Robinson.
JUSTICE KAGAN: Well, suppose I’m carrying my laptop in my backpack.
MR. DUMONT: And if your backpack is on your back when you’re arrested, yes, we think that’s we think that’s included.
And that’s why. Because the state’s position is so absurdly broad, that I think even Kennedy would hesitate to give them the power to exploit any exception. As this piece from Bloomberg puts it:
In the test case the court heard, the defendant was an alleged gang member, so the searches could logically include his e-mails, texts and photos, not to mention his bank account. His tattoos were part of the reason he was suspected of belonging to a gang, so records of visiting the tattoo parlor might have logically been included. Come to think of it, why not his medical records, in case he’d had a tattoo surgically removed? As Justice Elena Kagan put it, “It sounds good as a limiting principle, but it ends up you can imagine in every case that the police could really look at everything.”
The good thing, of course, is that the supreme court’s term is drawing to a close, so they will issue an opinion shortly. And then we’ll know whether to leave our cell phones at home, or whether we can take them with us, with the knowledge that the Fourth Amendment to the Constitution of the United States protects us from these extensive searches by the government.