The Supreme Court searched for a middle ground Tuesday on cellphone privacy. / Don Emmert, AFP/Getty Images
WASHINGTON - Supreme Court justices searched for a middle ground Tuesday on police searches of cellphones and smartphones so that criminal investigations don't trample on privacy rights - or vice versa.
In two cases involving police searches during arrests, a majority of justices acknowledged that the vast amount of sensitive data on mobile phones raises new privacy concerns. But they also seemed determined to preserve the ability of police to conduct reasonable searches during arrests, as they have been able to do for decades.
"We're living in a new world," said Justice Anthony Kennedy, a potential swing vote on the issue. "Someone arrested for a minor crime has their whole existence exposed on this little device."
"Most people now do carry their lives on cellphones, and that will only grow every single year as, you know, young people take over the world," Justice Elena Kagan said.
Because of that, said Justice Stephen Breyer, another likely swing vote, warrants should be sought when possible because "you want that third, dispassionate mind" of a magistrate judge involved.
Chief Justice John Roberts and several of his conservative colleagues said the volume and sensitivity of information on a smartphone should not benefit the criminal at the expense of police, who by law can search an arrested person and whatever is within his reach to find weapons and preserve evidence.
"Our rule has been if you carry it on your person, you ought to know it is subject to seizure and examination," Justice Antonin Scalia said.
The justices' recent decisions, as well as the arguments presented by both sides, appear to point toward a compromise. The Justice Department, in fact, said allowing police to search only for evidence they believe is relevant to the crime might be sufficient.
In just the past two years, the court has ruled that police can swab a suspect's cheek for DNA to put into an unsolved crimes database, as well as conduct strip searches of prisoners without reasonable suspicion. But it also has said police need a warrant to attach a GPS device to a suspect's car, to obtain blood from a drunken driver who refuses a breathalyzer test, and to bring a drug-sniffing dog up to the door of a suspect's house.
The cellphone cases may be just a precursor to more expansive and potentially explosive high court inquiries. Among them: an examination of the National Security Agency's phone and computer surveillance methods, on which two federal district courts recently diverged.
The two cellphone cases involve different crimes, different responses and different lower-court rulings. What joins them is one salient fact: Police searched cellphones without first obtaining warrants.
A California court upheld David Riley's conviction on gang-related weapons offenses that police uncovered after stopping his car for expired tags, finding guns under the hood and then discovering incriminating photos and video on his smartphone.
In Massachusetts, a federal appeals court threw out Brima Wurie's conviction after a more limited search of his old-fashioned flip-phone following a street arrest led police to find a cache of drugs and weapons at his home.
Because the California search was extensive and the Massachusetts search more limited and based on incoming calls, both cases could be ripe for reversal. But with appeals courts divided on the issue of cellphone searches, the justices are being asked to devise bright-line rules for police to follow.
That's particularly true because technology is advancing, creating new Fourth Amendment puzzles for police to solve.
"Smartphones do present difficult problems," Justice Samuel Alito said. "The technology changes a lot of things."
The justices were doing their best to keep up Tuesday. They tossed around terms such as Facebook, Twitter and "airplane mode" and referred several times to "apps."
When the discussion turned to password locks and other ways of making cellphones inaccessible, Breyer quipped that he doesn't know what type of phone he has "because I can never get into it."
Nine in 10 adults in the U.S. own cellphones, more than half of them smartphones. Eight in 10 use those phones to send text messages; more than half send or receive e-mail, download applications, or access the Internet.
Combine that data with the estimated 12.2 million arrests made nationwide in 2012 - not including citations for traffic violations - and you have a potential perfect storm of cellphone searches.
Much of the debate Tuesday focused on the differences between digital data and physical objects that the Supreme Court has ruled in the past can be subject to searches without warrants. Government lawyers said digital data is easier to destroy, making it even more important that police be able to search it immediately.
"It's an arms race between the forensic capabilities of law enforcement labs and the abilities of cellphone manufacturers and criminals to devise technologies that will thwart them," Deputy Solicitor General Michael Dreeben said.
But lawyers for the defendants said because so much confidential data is on smartphones, the privacy standard should be higher.
Otherwise, said Stanford University's Jeffrey Fisher, the lawyer representing Riley, "I think you will fundamentally have changed the nature of privacy that Americans fought for at the founding of the republic and that we've enjoyed ever since."
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