Next Tuesday, the Supreme Court hears oral argument in two cases, Wurie v. United States, and Riley v. Califonia.  Both involve the question of whether incident to arrest police can search a cell phone without a warrant, after arresting someone.  One involves a search of contacts from a flip phone; the other a smart-phone in which photos, texts, and call logs were searched.  

In thinking about these cases (which are for all practical purposes, one case) there are multiple ways the Court could resolve it.   They could argue that the existing precedent Chimel v. California provides support for the warrantless arrest.  Incident to arrest, in order to protect either other safety or to preserve evidence, a warrantless search of the person and the area within his or her immediate control can be searched.   This minimizes privacy, it assumes one does not have an expectation of privacy in not having government search the contents of your phone without a warrant.  Yet, it would be consistent with much case law, and the Court’s forty-plus year movement towards crime control.  

The government argues that there is both an officer safety and a evidence argument supporting the warrantless search.  They claim it is possible that an arrestee could use his phone to set off a remote bomb.   This could be true, in the most extremely rare exigent circumstance.  It could be true in those rare arrests of a suspected terrorist, but for 99.9% of arrestees, it has no basis in reality.  As Justice Scalia said in dissent over the Court’s permitting police to take DNA swabs of arrestees, in order to determine their identify, it “taxes the credulity of the credulous.”   Maryland v. King, 2013.   

Yet, there are two other possible outcomes.  One which would permit the search, one which would not.   In the former, the Court could extend the 2009 precedent from Arizona v. Gant, from the vehicle context to any arrest.  In Gant, the Court said that it was possible to search that the vehicle passenger compartment when it was reasonable to believe that further evidence of the crime of arrest would be found.   Thus, if you are arrested for a drug offense, it would be reasonable that your phone would contain a treasure trove of information about your dealer or customers.    But if you were arrested for public indecency, or even for an active warrant for failure to appear in court, it would not.    This could be a likely possibility, and it might satisfy Justice Scalia, who authored the concurrence in Gant  that created that standard.

But, there is a third possibility.  In United States v Jones,  2012, and Florida v. Jardines, 2013, Justice Scalia resurrected an old Fourth Amendment doctrine from the dead.   In the GPS case (Jones), Scalia argued that the government’s placement of a GPS tracking device on the under-carriage of a suspects vehicle was a physical trespass on a constitutionally protected area.   The Fourth Amendment guarantees against unreasonable searches of one’s person, houses, papers, and effects.   The vehicle is clearly an effect.   If government physically intrudes on that effect without a warrant, it is a trespass, and thus an unreasonable search.   If the vehicle is an effect, the cell phone is certainly an effect, and Scalia is likely, I think, to argue that a warrantless search of it is a violation of the original understanding of the Fourth Amendment.  

Perhaps I will be wrong, and he won’t argue trespass next week.  We’ll see. But in thinking of the outcome, there are two clearly defined camps.    Alito, Roberts, Kennedy, and Breyer will almost certainly argue that the search is warranted.   Heck, Alito is so far to the right as the ultimate post-9/11 statist, that he will even accept the government’s argument about officer safety to prevent bombs.  On the other side, I am confident, will be Justice Scalia, Ginsburg, Sotomayor, and Kagan. They have been a consistent voting block on Fourth Amendment cases in recent years.  There is little reason to expect them to diverge now.

This leaves the wildcard.  Justice Thomas.   Thomas joined the “trespass doctrine” argument in both Jones and Jardines.    He also joined the 5-4 majority in Arizona v. Gant, modifying the search incident to arrest doctrine, to those instances where it is reasonable to believe further evidence of the crime of arrest will be found.   Will he stick with trespass — and the framers views (as Scalia and he seem to prefer)?   Or will he use Gant, and possibly join the Four Fourth Amendment conservatives to uphold the search?   Since he doesn’t speak at oral argument, that answer is unlikely to be provided next week.  Yet, in an anonymous tip case that Thomas authored this week, Scalia skewered him in a scathing dissent, going so far as to say that “The Court’s opinion has served up a freedom-destroying cocktail of patent falsity.”   Will Thomas allow that attack on him to sway his views?  I doubt it, but who knows?  

Personally, I am rooting for the trespass doctrine, even though I don’t like it, and would rather see a Katz “reasonable expectation of privacy” argument, but since Scalia wants that standard to go away, I think the other “liberals” are more likely to just go along with Scalia and get the result they want with a trespass doctrine rationale.   

It should be interesting to see what happens, both next week, and in late June, when the case is decided.  Ironically, none of this would be an issue if police were simply not lazy at times.  At the time of the arrest, they could seize the phone as evidence, and then take the time to seek a search warrant.  It would probably be granted, and would then satisfy the Fourth Amendment’s command.    But that today, sadly, is the exception, and not the rule.