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Ninety percent of American adults have cell phones, most of them containing troves of personal data, including photos, contacts and correspondence.
The Supreme Court heard arguments today in two cases that challenge whether all that information should be fair game for law enforcement when a suspect is placed under arrest.
Marcia Coyle of "The National Law Journal" was in the courtroom this morning, as always, and she is back with us tonight.
Last week, we were talking about streaming video. This week, we're talking about cell phone data. The Supreme Court is suddenly getting very modern. How did this case get to the court?
MARCIA COYLE, "The National Law Journal": A new world, as one of the justices said today.
This, as you said, involved two cases, two separate arguments for an hour each. The one case was a state prosecution. Police stopped a man who was driving because his tags had expired. They found concealed and loaded weapons in the car, arrested him, confiscated his smartphone.
They searched the smartphone and found video and photos that linked him to a gang-related attempted murder. The evidence was used to convict him. The second case was a federal prosecution. A suspected drug dealer was arrested. His flip phone was searched by police. They looked at the call log on the flip phone, found a phone number that they used to find an address of the man's house, later went and searched the house with a warrant and found drugs. That evidence was used to convict him.
But they didn't have a warrant to search the phones.
That's right, exactly.
And common to both these cases is sort of an exception to what generally makes police searches reasonable under the Fourth Amendment, a warrant, and that's an exception that's known as search incident to an arrest.
Police can search you after they arrest you for two justifications, one, an officer's safety, and, two, to prevent destruction of evidence. And that's what was focused on today during the arguments. Did the officers have those justifications?
The lawyers for the criminal — the convicted criminals can here said, no, the police seize the phone, secure them, get a warrant. Get a third-party magistrate to say what they can really look at on the phone. The government argued, no, no, this is an officer in the field. Cell phones today are very sophisticated.
They can be used to trigger bombs. They can send messages to confederates, criminal confederates, to either run or come and help the person arrested.
So having a cell phone is not the same has having a wallet. A wallet, they could reasonably search, and nobody would say anything, because it's on your person. But a cell phone is different?
Well, that's the question. How different is it, really?
The justices, for example, gave an example. You have a billfold in your pocket and it contains five photos. Justice Alito said, police can look at those five photos after they arrest you. Why can't they look at your cell phone that has 1,000 photos? What's different here?
And that drew them into discussions about why it is so different, that some photographs on cell phones have information that's more just the image in the photograph. Justice Kagan, for example, pointed out, also, that cell phones today, people have their entire lives on their cell phones.
Where do you draw the line on what the police can look at if they can search the cell phones?
It sounds like the justices themselves were kind of going back and forth among themselves about what they are supposed to be judging this on.
Some of them, maybe two or three, seemed to think, well, you know, why not get a warrant? These phones were searched at the police station. There was time to get a warrant. But, again, the government lawyers come back and said, look, you know, you're talking about officers who, you know, are standing out on a street and they have arrested somebody. They have to make quick decisions.
Also, the technology — the lawyer for the Obama administration said the FBI is finding an increasing problem with encryption on cell phones. There are buttons where the cell phone can be — all the information can be encrypted, and it's taking their labs months, if ever, to break through to the encryption. So they want to be able to get into those cell phones as soon as possible.
Where does a conservative justice like Justice Scalia come down on something like this? Did he tip his hand at all?
No, he really didn't.
For him, this may be hard. He often — in criminal cases, you know, he goes with the text of the amendment. That sometimes puts him on the side of the criminal defendant.
It seemed to me they were really struggling today to find a middle ground, a middle ground that would allow police to be safe, to preserve evidence and yet, at the same time, not open your cell phone to everything in your life.
So establish a line of reasonable suspicion, when it's reasonable to look at…
Well, that's — you get a warrant.
But I think more — it has more to do with going beyond those two justifications for the search incident to your arrest. The government suggested, let us search for evidence of the crime of the arrest. That takes you a little farther into the cell phone itself.
I think it's a real struggle for them. And they want, usually, to have a bright line so that the police know what they can do and what they can't do, and there was no evidence of a bright line today.
No bright lines today.
Marcia Coyle, thank you.
Oh, my pleasure.
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