With the conservative justice emerging as a foe of ‘unreasonable searches,’ the court will decide whether police can examine phones seized during arrests.

David G. Savage 

WASHINGTON — Justice Antonin Scalia, the Supreme Court’s new champion of the 4th Amendment, is likely to play a crucial role Tuesday when the court hears this year’s most important search case: whether the police may routinely examine the digital contents of a cellphone confiscated during an arrest.

Civil libertarians say the stakes are high because arrests are so common — 13.1 million were made in 2010, according to the FBI — and smartphones hold so much private information.

Under current law, officers may search a person under arrest, checking pockets and looking through a wallet or purse. The question is whether a smartphone carried by the person is also fair game.

“It’s all of your personal information,” said Norman Reimer, executive director of the National Assn. of Criminal Defense Lawyers, which opposes giving police such powers. “It’s an incredible exposure of your privacy.”

In the past, defense lawyers did not look first to the conservative Scalia as an ally. But in recent years, he has insisted on forbidding the kinds of “unreasonable searches” that he says would have troubled the framers of the Constitution.

Last week, he slammed the high court’s majority for serving up a “freedom-destroying cocktail” in an opinion that gave police a free hand to stop cars on the highway based solely on an anonymous tip.

Last year, he fired off a fierce dissent when the court ruled that police may routinely take DNA swabs from people who are arrested.

He wrote the decision that accompanied a 5-4 ruling last year banning police from using drug dogs to sniff at the front of a house and a 2012 ruling barring police from attaching a GPS tracking device to a car.

With an eye toward Scalia, lawyers in the cellphone case have carefully quoted the 4th Amendment, which protects the “right of the people to be secure in their persons, houses, papers and effects.” In the 21st century, they say, many people store their “papers and effects” on a mobile device.

Private information used to be kept at home on paper, including your photos,” said Elizabeth Wydra, counsel for the Constitutional Accountability Center. “Now they’re in your pocket on a phone. With a smartphone, you can literally look into a person’s home.”

She noted that her phone features an app that allows her to monitor video of her home so she can keep an eye on her dogs.

Judges across the country are split on whether the police must obtain a search warrant before viewing the contents of a smartphone or cellphone. On Tuesday, the high court will hear two cases on the topic, one from San Diego and the other from Boston.

The case of David Riley vs. California shows how smartphones can greatly help the police in solving crimes. Described by his lawyer as a college student and by prosecutors as a member of the Lincoln Park gang, Riley was pulled over by a San Diego police officer in 2009 for having expired tags on his car. When the officer saw his driver’s license was suspended, he checked the car and found two loaded guns.

Police also examined his Samsung smartphone, which contained photos revealing gang affiliation and one of an Oldsmobile that had been used in a drive-by shooting. Riley was charged with attempted murder.

He was convicted and sentenced to 15 years to life. The California Supreme Court rejected his appeal, ruling that police may search a smartphone after making an arrest.

Arguing Riley’s appeal, Stanford University law professor Jeffrey Fisher says the police should be required to obtain a search warrant from a magistrate before they “rummage through the digital contents” of a smartphone. If officers seize a phone from a suspect, he argued, they should shut it down and keep it in a storage bag until a magistrate can decide whether there is “probable cause” to justify a search.

Defending the search, California Deputy Atty. Gen. Christine Levingston Bergman argued the court should not devise a new rule for smartphones. Though the technology may be more advanced, “the phone and video clips at issue here are not different in kind from wallets, address books, personal papers and other items that have long been subject to examination by police,” she said in her brief to the court.