What to make of oral argument in the cell phone case

Wow.  After reading 130 pages of argument transcripts from the Riley and Wurie cases, it is clear to me that technology is really beyond the justices.  And yet, they wanted to sound hip, and be up on all the latest things, by asking questions like “Your brief suggested a limitation with respect to access to the iCloud.”    The iCloud.   Apparently Justice Sotomayor owns an iPhone, and thinks cloud storage is “iCloud storage.”   

But I digress.  There was plenty of  skepticism among the justices who spoke about considering a search of a phone’s contents to be the same as anything else incident to arrest.   Justice Breyer, Sotomayor, Ginsburg, Alito, and even Chief Justice Roberts all voiced concerns — with much discussion about reasonable expectations of privacy.

Justice Scalia surprised me, and quite frankly, disappointed me.   He seemed to think the law was clear, incident to arrest you can search things that are in the arrestee’s persona and within their reaching distance (although he didn’t speak much about Chimel).   He did seem to suggest that Arizona v. Gant’s “reasonable to believe that further evidence of the crime of arrest” might be an important modifier.   But not once, did he acknowledge that the cell phone was an “effect.”  In the past two terms, Scalia has argued that physical intrusions on constitutionally protected places — one’s person, house, papers, and effects, represents a trespass — and is an unreasonable search.   He has always framed his arguments in terms of what the Framer’s of the Constitution would have thought the Fourth Amendment protected.  And given his decisions in Jones and Jardines, this could have been a slam-dunk argument.   But he didn’t make it.    Yet, he also was largely silent for most of the two hours, and did not ask many questions at all.  I am uncertain what to make of his lack of participation.  Maybe he had a cold.   Who knows.

Yet, there seemed to be concern about allowing police to have full access to all of the contents of an arrestee’s phone without a warrant.   The Court explained the rationale for the warrant – and having a neutral magistrate to make the decision about whether to issue a warrant — seemed to take a large amount of the Court’s time.    Justice Breyer made a strong argument for why a warrant and magistrate is important.  

The Court seemed to go far afield from the facts of both cases in the extended discussion given to encrypted phones and the ability to “buzz” them to automatically wipe the phone’s contents.  It seemed a bit surreal, as if it was out of a science fiction movie, and did not seem to reflect reality, or much understanding.  

The Chief Justice seems to misconstrue privacy interests in social media, but no other justices appeared to accept his arguments.  He even claimed that Facebook users had basically no privacy.   (His argument was countered that a Facebook account opens things to some but not all people).   But he also seemed skeptical of allowing full access to a phone. 

I would love to be a fly on the conference room wall on Friday when the Court decides the case.  But Sotomayor, Kagan, Ginsburg, Breyer, Kennedy, Alito, and perhaps Roberts seemed to support limits on police searches of phones.   I can’t even pretend to categorize where Scalia will be.   And Thomas never spoke.   

And now we wait.  

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