By Julian Hattem

The Supreme Court on Tuesday seemed willing to restrict the ability of police officers to search cellphones without a warrant.

In arguments on two closely watched cases, the justices expressed concerns about the government’s push to give police unfettered access to the troves of data found on smartphones and other digital devices.

Justice Sonia Sotomayor said a phone with pictures on it is inherently different from a photograph and suggested the technology should merit extra protections.

“Practically speaking, a person can only carry so much on their person. Carrying a billfold of photographs is a billfold of photographs,” whereas with a cellphone, “we’re talking about potentially thousands [of photos], because with digital cameras, people take endless photos, and it spans their entire lives.”

Justice Antonin Scalia, however, said the court’s rule “has been, if you carry it on your person, you ought to know it is subject to seizure and examination.”

“So, if you carry around a cellphone that isn’t encrypted or whatever, you know, you get what you should have expected. That’s been the rule: If you are arrested, we can seize it and examine it.”

Still, Scalia added that it “seems absurd” to allow police to search the phone of someone accused of not wearing a seatbelt or other minor offenses.  

Outcomes of Supreme Court cases are notoriously hard to predict, but privacy advocates said they are hopeful that common ground between Scalia and Sotomayor, who are often considered at two different poles on the court, could deliver them a victory.  

Liberals and libertarians have united against the searches, and “a lot of people were looking for that right-left alliance to be mirrored on the court as well,” said Elizabeth Wydra, chief counsel at the left-leaning Constitutional Accountability Center.

“Scalia, in criminal cases, is often the one who will join with the liberals,” she said.

Privacy advocates are framing the dispute in terms of the constitutional right to privacy, but law enforcement officials say phones can provide critical evidence about crimes suspects have committed, or about impending threats. 

If cops can’t search a phone soon after a suspect is arrested, the government warned, criminals could easily get rid of or encrypt evidence that could be used to take murderers and drug dealers off the streets.

Under the law, police can search suspects “incident to arrest” to find any weapons they might be carrying or evidence that could be destroyed.

The government argued that the standard should include cellphones, which might contain a vast trove of information but can easily be erased.

“It avoids the destruction of evidence; it protects officer safety, and it allows the discovery of evidence that’s relevant to the crime of arrest to enable prosecution,” said Michael Dreeben, the Justice Department’s deputy solicitor general.

“The digital format should not make a difference,” reiterated California Solicitor General Edward DuMont.

Privacy advocates countered in their arguments that allowing police to search cellphones without a warrant would be like letting them search desktops, file cabinets and other detailed databases.

“It has always been the case that an occasion of an arrest did not give the police officers authority to search through the private papers and the drawers and bureaus and cabinets of somebody’s house,” said Stanford law professor Jeffrey Fisher, “and that protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones.”

Responding to the privacy concerns, Justice Anthony Kennedy suggested drawing a distinction in the law “between serious and nonserious offenses.”

Chief Justice John Roberts also brought up the examples of Facebook and Twitter, which are public, to try and probe the possible limits of police searches.

“Any privacy interest in a Facebook account is at least diminished because the point is, you want these things to be public and seen widely,” Roberts said. “Could you have a rule that the police are entitled to search those apps that, in fact, don’t have an air of privacy about them?”

Requiring a warrant could be difficult in practice, Roberts said, since cellphones can contain such vast amounts of data. Courts could have a hard time outlining the warrant to dictate what police are searching for.

“It’s very hard to see how that limit would be applied,” he said, “You can see, and the police would be able to articulate, why almost every application, every entry on a cellphone would reasonably be anticipated to have evidence of a particular crime.”

The two cases, which were argued separately, dealt with an alleged drug dealer and an alleged gang member whose phones were used by police to obtain evidence about them.

In Riley v. California, police stopped a man for having expired license plates and then found two guns in his car that were later linked to a recent shooting. On his phone, they found photos and videos that seemed to connect him to a local gang, and then used phone records to place him near the scene of the shooting.  

U.S. v. Wurie focused on a man arrested for dealing drugs. After the arrest, his phone kept ringing with a call from “my house.” Police went on the alleged dealer’s phone to get the number that was calling him, tracked that to a house that seemed to belong to him and then, after getting a warrant, went in and found drugs, cash and a gun.