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Supreme Court faces a New World with cellphones

May 2, 2014 by NCC Staff


Perhaps the most-interesting case heard this week in the Supreme Court affects the most Americans: Can police search your cellphone without obtaining a warrant, if you are arrested?

iphone2In 2013, Pew Research said 91 percent of Americans had cellphones, with 56 percent owning smartphones. That survey came two years after an industry group declared that there were more cellphones than people in the United States. And that’s not even counting other mobile devices like iPads and tablets.

Related Story: Supreme Court ponders if police can search your cellphone without a warrant

In two separate arguments on Tuesday, the nine Justices heard arguments in two cases: one involving a smartphone searched without a warrant, the other about an old-school flip phone that was also subject to a warrantless search.

The online version of the Economist has a good analysis of the cases, and what they could mean for the population at large.

“Supreme Court oral arguments, some scholars say, are all show,” it said, but it then noted that the Riley and Wurie cases seem to be an exception. “If the justices entered the courtroom on April 28th sure of their votes in this year’s biggest and trickiest fourth-amendment cases, they hid their certainty brilliantly,” it said.

That was same observation of many veteran reporters who attended the arguments, where the Justices seemed to be looking for a compromise solution that would allow warrantless searches in some instances, but bar them in others.

Justice Elena Kagan labeled one hypothetical situation as coming from a “very different kind of world” in the Riley arguments.

“People carry their entire lives on cell phones. That’s not a marginal case. That's the world we live in, isn't it?” Kagan asked.

In the Wurie arguments, Justice Anthony Kennedy said, “I don't think it's odd to say that we're living in a new world. Justice Kagan's questions point out the fact that someone arrested for a minor crime has their whole existence exposed on this little device.”

Over at SCOTUSblog, Constitution Daily contributor Lyle Denniston broke down the two arguments and the dilemma for the Justices.

“The Supreme Court on Tuesday reached for a new digital-age constitutional formula for police searches of those ubiquitous devices, but found that maddeningly elusive,” he said.

Denniston and other commentators concluded the Justices weren’t interested in absolute ruling that would all allow warrantless phone searches in all cases, or ban them in all cases.

The bigger question centered on the Court’s ability to allow the warrantless search for the flip phone, and disallow the warrantless search for the smartphone, based on the volume of personal data contained on the latter device.

Another problem was what kind of data and information would be considered private during a limited, targeted search.

And the Justices brought up yet another problem: What if a phone rings during an arrest; would the police have the ability to answer it without a warrant?

Still another situation brought up in court was the possibility that warrantless searches could be restricted to serious crimes and not allowed when someone was cited for a traffic violation.

Adam Liptak from the New York Times notes that the Justices themselves had “varying degrees of familiarity” with cellphones.

Justice Stephen Breyer said he did own an iPhone, but he couldn’t get into it because he has password problems.

The Court is expected to issue a ruling in late June on both cases.

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