During opening arguments on April 29 for the case Riley v. California, Justices seemed cautious in opening up digital information held on smartphones and other devices to the unwarranted search and seizure currently allowed for other items at the time of an arrest.

The Wall Street Journal reports that California’s solicitor general, Edward DuMont, who argued on behalf of the state, was unable to gain traction on a suggestion that the contents of a cellphone should be regarded in the same way as a pack of cigarettes, a wallet or other items currently approved for warrantless searches. Those items are approved on the basis of “incident to arrest” and were initially conceived to protect police officers and prevent the destruction of evidence.

Justice Elena Kagan said of the argument that it, “applies to any arrest. And it applies to everything on a cellphone. People carry their entire lives on cellphones. That’s not a marginal case. That’s the world we live in, isn’t it?”

The defense also offered solutions to get around that issue, including allowing for the search of information only directly related to the arrest, only requiring the search of phones for major offenses, or searching only information locally stored on the phone but not that stored virtually.

However, those stipulations did not seem to placate the Justices who indicated that the lines were not clear enough in any of those instances to act as a hard and fast rule. Justice Stephen Breyer said that it could simply be that police officers would need to obtain warrants to search devices.

“The point of a warrant is that a person who is not involved and is objective listens to what the policeman is saying, knowing that sometimes, like me or any other human being, a policeman can get a little carried away,” Justice Breyer said. “You want that third dispassionate mind to review what the facts are.”

While there was skepticism about allowing this type of unwarranted cellphone searches, plaintiff lawyer, Jeffrey Fischer was also met with pointed questions.

Justice Samuel Alito at one point asked Fischer, “suppose your client were an old­school guy and he didn’t have ­­ he didn’t have a cell phone. He had a billfold and he had photos that were important to him in the billfold.  He had that at the time of arrest. Do you dispute the proposition that the police could examine the photos in his billfold and use those as evidence against him?”

While Fischer agreed that such situations were indeed warranted, he offered concerns that extending searches to phones would open, “every American’s entire life to the police department, not just at the scene but later at the station house and downloaded into their computer forever.”


A ruling on the case is expected in July.


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