Last week the Supreme Court heard arguments in Riley v. California and United States v. Wurie which involve to what extent can police search the cell phone of someone arrested without a warrant. Amy Howe in SCOTUSblog explains, A whole new world: Today’s oral arguments in Plain English. "Going into the oral argument, both California and the federal government told the Court that, whenever police make an arrest, cellphones should be fair game for a search for all of the same reasons that police can search, for example, the arrestee’s wallet without a warrant. But it’s hard to see five Justices voting in support of that rule, given the widespread skepticism that the argument met on the Court. Justice Elena Kagan was one of the most vocal opponents of such a rule, telling California Solicitor General Edward DuMont that, following his logic, an arrest for a minor offense like driving without a seatbelt would allow police to look at every single e-mail on the arrestee’s phone, along with his bank records, medical data, calendar, and GPS data. That, she suggested, ‘strikes me as a very different kind of world’ from looking at someone’s billfold, given that ‘people carry their entire lives on cellphones.’ Justice Antonin Scalia later echoed this idea, calling it ‘absurd’ that police should be able to search someone’s iPhone for that kind of minor offense. Justice Anthony Kennedy, whom many often regard as a key vote on the Court, expressed concerns as well, telling Deputy U.S. Solicitor General Michael Dreeben (who argued on behalf of the federal government in both cases today) that ‘we are living in a new world,’ in which someone arrested for a minor crime has her ‘whole life on [her] phone’ and asking whether Dreeben could suggest some limits on the potentially broad sweep of the government’s rule.
But even if California and the federal government seem unlikely to win outright, the chances that the Court will require police officers to get a warrant whenever they want to search an arrestee’s phone appear even slimmer. Although (as the previous paragraph indicates) virtually all of the Justices were keenly aware that cellphones are unique insofar as they contain large amounts of personal information, they were equally mindful that – as Justice Kennedy observed – criminals also rely on cellphones to facilitate their dirty work. And the Justices may be reluctant to hamstring efforts by law enforcement officials to fight and investigate crime. Dreeben seized on this concern, repeatedly pushing back against the suggestion that police could always go get a warrant and then search the phone once they obtained it. He spent much of his half-hour at the lectern during the Wurie argument describing the benefits that could come from an immediate search of a cellphone – such as learning of a plan by the arrestee’s confederates to ambush police – and warning the Court that, if police have to delay a search to go get a warrant, sophisticated encryption technology can kick in and make the data on the phone ‘useless,’ possibly for months."
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