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04/28/2014

The Cell Phone Search Cases: Justice Scalia as the Swing Vote?
Michael Ramsey

In the L.A. Times, David Savage: Scalia set to play key role in Supreme Court smartphone case (via How Appealing).

Justice  Antonin Scalia, the Supreme Court's new champion of the 4th Amendment, is likely to play a crucial role Tuesday when the court hears this year's most important search case: whether the police may routinely examine the digital contents of a cellphone confiscated during an arrest.

...

In the past, defense lawyers did not look first to the conservative Scalia as an ally. But in recent years, he has insisted on forbidding the kinds of "unreasonable searches" that he says would have troubled the framers of the Constitution.

Last week, he slammed the high court's majority for serving up a "freedom-destroying cocktail" in an opinion that gave police a free hand to stop cars on the highway based solely on an anonymous tip.

Last year, he fired off a fierce dissent when the court ruled that police may routinely take DNA swabs from people who are arrested.

He wrote the decision that accompanied a 5-4 ruling last year banning police from using drug dogs to sniff at the front of a house and a 2012 ruling barring police from attaching a GPS tracking device to a car.

With an eye toward Scalia, lawyers in the cellphone case have carefully quoted the 4th Amendment, which protects the "right of the people to be secure in their persons, houses, papers and effects." In the 21st century, they say, many people store their "papers and effects" on a mobile device.

The cell phone search cases (Riley v. California and United States v. Wurie), are set for argument tomorrow (4/29).

With apologies to all who have written so much on this issue, the more I think about it, the less difficult it seems.  Carrying a smartphone is like carrying a big (really big) box of papers in public.  If you get arrested carrying a big box of papers in public, can the police read the papers?  I'm entirely ignorant on criminal procedure issues, so I don't know the answer, either for today or for 1791/1868.  But it's the same answer, is it not?

Apparently the defendants don't want to frame it this way.  From the David Savage article:

"Private information used to be kept at home on paper, including your photos," said Elizabeth Wydra, counsel for the Constitutional Accountability Center [supporting defendants]. "Now they're in your pocket on a phone..."

Well, in earlier times people could make a decision to leave their private information at home or bring it out in public.  They still can.  I don't see the constitutional difference, merely because it's now easier to bring it out in public.  If the rule is, the police can search everything you have on you when you are arrested, that's still the rule, even though people are now choosing to have more things on them.

On the other hand:

Defending the search, California Deputy Atty. Gen. Christine Levingston Bergman argued the court should not devise a new rule for smartphones. Though the technology may be more advanced, "the phone and video clips at issue here are not different in kind from wallets, address books, personal papers and other items that have long been subject to examination by police," she said in her brief to the court.

The first part of this sounds right, but as to the conclusion: really? Police can search address books, personal papers, etc., that you happen to have in your pocket when they arrest you?  I would like some evidence that this was the rule in 1791 before I accepted this argument.  If someone is stopped for a traffic violation (as the petitioner in the Riley case was), I have a hard time seeing how the police have reason to read his address book (paper or electronic).