April 29, 2014, 3:02 PM — Police shouldn't be able to search suspects' mobile phones at the time of arrest because of the huge amounts of private information now stored on those devices, lawyers for two criminal defendants argued before U.S. Supreme Court Tuesday.
The Supreme Court should make an exception for mobile phones in long-standing case law allowing police officers to search suspects at the time of the arrest without getting a court-ordered warrant, lawyers for the two defendants argued.
If the court allows uninhibited police searches of smartphones, it has "fundamentally changed the idea" that warrants are needed to search most personal effects, said Jeffrey Fisher, a lawyer representing David Riley, who was arrested on gang-related charges in San Diego in 2009. A smartphone potentially contains much more personal information than a suspect could carry in the predigital era, he said.
Several justices seemed to be sympathetic to the arguments for Riley, if not for Brima Wurie, a suspected drug dealer arrested in Boston in 2007.
The state of California's position that police should be allowed wide latitude to search suspects' mobile phones at the time of arrest opens up the possibility of privacy-invading searches of photographs, medical records, email, phone records and GPS records after arrests for minor infractions, said Justice Elena Kagan.
"A person can be arrested for anything," she said. "A person can be arrested for driving without a seat belt."
Other justices questioned why they should prohibit police from searching mobile phones, when they already can search a suspect's wallet or cigarette pack. Under current case law, police could search a piece of paper in a suspect's pocket that contains phone numbers, said Justice Samuel Alito.
The difference is one of scale, Fisher said. Smartphone users increasingly have their "entire lives" on their devices, he said.
Kagan agreed. A search of a suspect's smartphone has much broader privacy implications than "when people have pictures of their family in their billfolds," she said.
California Solicitor General Edward DuMont and U.S. Deputy Solicitor General Michael Dreeben called on the court to allow police searches of mobile phones at the time of the arrest. Police must have those search powers to investigate the crimes the suspects were arrested for, to protect themselves against bombs or other weapons hidden in phones and to prevent the suspect from calling or texting friends with a request to attack the arresting officers, they said.
In addition, police are becoming increasingly concerned about encryption on phones, Dreeben said. In some cases, if a smartphone is allowed to lock, it may be difficult for police to break the password or to defeat encryption on the phone, he said. "It may be months or years or never that they can break through the encryption," he said.