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.