Want to Search That Cell Phone? Better Get a Warrant

The Supreme Court laid down a marker for privacy in the smartphone era Wednesday—and Chief Justice John Roberts showed a surprising new savviness about technology.

One smartphone owner in eight, Chief Justice John Roberts noted Wednesday, admits to sometimes taking a cell phone into the shower. (The other seven, I think, are probably lying.)

Thanks to the Court, smartphone bathers can shower assured that even if the police burst in upon them like Norman Bates in blue, seize their persons roughly, and parade them off in dishabille to be subjected to jailhouse indignities, the officers cannot amuse themselves afterwards by idly poking through the smartphones they confiscate.

For that, they need a warrant.

That’s the result in two cases decided Wednesday—Riley v. California and United States v. Wuriethat featured all but identical facts. Defendants were detained validly, one for driving with expired tags and the other for a hand-to-hand drug sale. Police searched them, as they had every right to do, and seized their phones. Without getting a warrant, they looked at the contents of each phone and found evidence that led, eventually, to much more serious charges: gang-related attempted murder in the first case and drug distribution and weapons violations in the other.

California state courts refused to overturn Riley’s conviction when he appealed the attempted murder charge, but the 1st Circuit Court of Appeals reversed Wurie’s conviction and ordered a new trial on the grounds that the warrantless search violated the Fourth Amendment’s prohibition against “unreasonable searches and seizures.”

A search with a valid warrant is virtually always “reasonable,” but a search without a warrant, is not automatically “unreasonable.” Police can search a suspect’s pockets, or briefcase, or car when making a valid arrest. Caselaw defends the exception because there may be weapons nearby or evidence of crime that could be lost. In addition, officers can search when there are “exigent circumstances,” meaning when there is no time to lose, in order, say, to stop a crime in progress, prevent suspects from destroying evidence, or rescue a kidnap victim.

The lawful-arrest exception implicates pockets and purses. Prosecutors in both cases argued chiefly that searching a cell phone is really just the same thing as searching such personal items. Roberts retorted, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”

The chief justice once suggested from the bench that technological sophistication for law enforcement meant “the latest version of WordPerfect, or whatever it is.” But in Riley, he was armed with the facts about the mysterious new world of smartphones, mobile apps, and cloud computing. Cell phones, he wrote, “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” They carry a full history of the owner’s recent life—who the owner has emailed or texted and what was said; where the owner has been and how many times; bank records and health information; and even “apps for improving your romantic life.” If the arrest exception is stretched to cover smartphones, it might permit searches that would “expose to the government far more than the exhaustive search of a house.”

The opinion closed with an obbligato to the Founders, who fought the Revolution to get away from snoopy Brits armed with “writs of assistance.” But its core is old-fashioned, non-originalist balancing. “Absent more precise guidance from the founding era,” Roberts wrote, the case must be decided by balancing the severity of the government intrusion against “the degree to which it is needed for the promotion of legitimate governmental interests.”

“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime,” Roberts wrote at the close of his opinion. “Privacy comes at a cost.” It seems likely, however, that day-to-day law enforcement can take the decision in stride, as he noted: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.” Roberts wrote that that in some places “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes.” In addition, the “exigent circumstances” exception applies to cell phones as well as anything else.

Until Wednesday, this Court has seemed to be over its head in cases dealing with privacy and technology. In United States v. Jones, it confronted the issue of computerized GPS tracking of a suspect’s car, and resolved it with a ridiculous opinion by Justice Antonin Scalia imagining whether the Founding Fathers would have permitted a sheriff to conceal a constable for months at a time inside a suspect’s carriage. Last year, in Clapper v. Amnesty International, it shied away from considering whether eavesdropping on Americans’ phone calls to persons in other countries was a violation, dismissing a lawsuit because the plaintiffs couldn’t prove they’d been subject to wiretaps.

There is already speculation about what, if any, implications this case will have for challenges to the National Security Agency’s amassing and storage of data from Americans’ cell-phone and computer use. It would, I think, be a mistake to read too much into it—nothing in this case implicated national security or terrorism, two government interests to which this Court seems relatively eager to defer—as in Clapper. But it does suggest that the Court that hears that case, when it does, will be more technically savvy than it has been. The John Roberts who wrote Riley will understand why privacy advocates worry about the collection of “metadata” as well as of the contents of calls.

The justices were unanimous in the result, and eight joined the chief’s opinion. (Justice Samuel Alito wrote separately to suggest that Congress could help out the courts by passing a statute covering this area.)

Of the three cases announced Wednesday, two were unanimous. By my count, that brings the number of unanimous results to 46. Though the most divisive cases remain, the Court is will end this term with a much higher percentage of unanimity than ever before. That’s long been an aim of the chief’s. He had a good day Wednesday.