Roughly 90% of adults in the United States have cellphones. (Pieter Ouwerkerk/Flickr)
Roughly 90 percent of adults in the United States have cellphones. (Pieter Ouwerkerk/Flickr)

Update Wednesday, April 30: The two-hour oral arguments in Riley v. California at the Supreme Court on Tuesday were, according to press accounts, lively.

The more liberal justices (Kagan, Sotomayor, Breyer and Ginsburg) seemed most concerned about warrantless searches of cellphones.

“People carry their lives on cellphones,” said Justice Kagan at one point.

Justice Anthony Kennedy, who is often the SCOTUS tiebreaker, and Justice Antonin Scalia both indicated interest in some kind of “middle ground” decision.

“It seems absurd you should be able to search that person’s iPhone because of an arrest for a minor crime,” Scalia said. Those kinds of comments suggested an ultimate decision short of a “bright line” all-or-nothing ruling, such as “you must have a warrant to search a cell phone at any time for any reason.”

The justices, who are sometimes portrayed as “less than with it” when it comes to technology (will there ever be cameras in the courtroom?) seemed to go out of their way to show their hipness.

Chief Justice John Roberts wondered if some data on cellphones might not be legally protected, given how public it already is. “What about something (from) Facebook or Twitter? The privacy interest in a Facebook account is at least diminished,” he said. Someone out there is sure to have “liked” that comment.

Here’s some of the coverage of the arguments:

A ruling on the issue is expected by the end of June.

Original post (Monday, April 28): Early one morning in 2009, college student David Riley was pulled over by San Diego police. Riley’s plates had expired tags and he was driving with a suspended license.

In the course of searching his car, the police found two concealed and loaded handguns.

Riley was placed under arrest and the officer took a Samsung smartphone from his pocket. That phone — and everything stored on it — was later searched by the police without a warrant. The contents of the phone were used to connect Riley to gang activity, leading to several charges, including attempted murder. He was sentenced to 15 years to life.

Stanford Law Professor Jeff Fisher, who is Riley’s attorney, explains that police “found photographs and videos of Mr. Riley near a red car — a car that had been involved in an altercation where shots were fired.”

His conviction and the warrantless phone search were later upheld by the California Supreme Court, which had previously ruled that such searches are constitutional.  Now Riley is asking the U.S. Supreme Court to declare that such searches violate the Fourth Amendment’s ban on “unreasonable searches and seizures.” The case will be heard Tuesday.

“A cellphone is, in essence, a portal into the most private and sensitive information in our lives,” Fisher says. “Our work, our personal life, our banking, our medical records — all the way down the line.”

In its brief to the Supreme Court, the government contends the Fourth Amendment allows the search of objects found on someone arrested, including a cellphone. That information, they argue, “is not different in kind from wallets, address books, personal papers and other items that have long been subject to examination.”

Law enforcement groups agree. Richard Littlehale represents the Association of State Criminal Investigative Agencies, part of a consortium of groups asking the court to uphold these searches. Littlehale says that in the future more and more evidence is going to be found in digital formats. Unless police are allowed to immediately search a smartphone, he says, evidence could be lost forever.

“We need to get out there more and explain why we need these records and make our case to the courts and make our case to the public that this evidence is important in our quest to protect them,” Littlehale says.

Privacy advocates say the fear of losing potential evidence is overblown, arguing that there are ways to preserve the information on cellphones until the police have a search warrant. They argue that the amount and sensitivity of information stored on cellphones require a higher level of privacy.

In addition to Riley v. California, the Supreme Court on Tuesday will also hear a second case, U.S. v. Wurie, arising from a 2007 Boston case in which police searched the call log of a flip phone, leading to gun and drug charges. Last year, a federal appeals court ruled that evidence was obtained illegally, the opposite finding to the California case.

The pervasiveness of mobile phones — nine out of 10 adults in the U.S. have cellphones — make these cases the most important in the Supreme Court’s criminal docket this term, according to UC Hastings Law Professor Rory Little.

“These cases have been sort of brewing for years,” Little says. “How’s the Fourth Amendment going to be applied in the 21st century when the framers had no conception of any of the technology that we now have to deal with?”

Unlike some issues, Little says, this one may not break along the usual liberal-conservative lines. For example, conservative Justice Antonin Scalia often expresses concern about law enforcement’s encroachment on personal privacy.

In the end, Little says, the court may not issue a sweeping decision. “My prediction is they will move incrementally. They won’t decide a case which then decides every issue for the future.”

Watch Scott Shafer’s interview with UC Hastings Law Professor Rory Little and San Jose Mercury News Reporter Michelle Quinn, on “KQED Newsroom.”

KQED NEWSROOM is a weekly news magazine program on television, radio and online. Watch Fridays at 8 p.m. on KQED Public Television 9, listen on Sundays at 6 p.m. on KQED Public Radio 88.5 FM and watch on demand here.

  • TerryGauchat

    Violation of the 5th Amendment, if you consider the phone to be an extension of its owner.


Scott Shafer

Scott Shafer migrated to KQED in 1998 after extended stints in politics and government to host The California  Report. Now he covers those things and more as senior editor for KQED's Politics and Government Desk. When he's not asking questions you'll often find him in a pool playing water polo. Find him on Twitter @scottshafer

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