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Welcome to the New Age

Antonin Scalia, of whom I once said, cribbing Molly Ivins' line, that I preferred to read his opinions in the original German, is one of the great Supreme Court justices in our history.  His opinion in Blakely revolutionized the right of jury trial, and Crawford did the same for the Confrontation Clause.  More significantly, he's been inordinately successful in promoting originalism -- what reasonable persons living at the time of the Framing would have thought was the ordinary meaning of the text -- as a theory of constitutional interpretation.  District of Columbia v. Heller, the case recognizing the Second Amendment as granting an individual right to bear arms, was a 5-4 decision, but both sides argued on Scalia's turf:  the dissenters, as much as Scalia, looked to the original meaning of the Amendment.

But that only takes you so far, as we find out in the Court's decision last week in Riley v. California.  

The facts were simple.  When Riley was arrested, the police took his smart phone from him and found videos and photographs on it linking him to a shooting.  After they arrested the defendant in the companion case, US v. Wurie, the police looked through his flip phone, accessed his call log, and traced one number to Wurie's apartment; they obtained a search warrant for the apartment, and found drugs, guns, and money.  The California courts held that the warrantless search of Riley's phone was permissible; the 1st Circuit came to a contrary conclusion in Wurie's case.

Scalia has no trouble specifically invoking what the Framers might have thought of some particular issue; last year, in Maryland v. King, he closed his dissent from the majority's upholding a Maryland law which required all persons arrested of a felony to submit to taking a DNA sample with "I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."  Roberts, who writes for a unanimous court in Riley, is no slouch in that department, either:   he disposed of the Government's contention that law enforcement agencies should develop protocols to address the problem, acerbically noting, "the Founders did not fight a revolution to gain the right to government agency protocols."

There's so much more, though.  At heart, the law is simple, too.  The authority to conduct a warrantless search incident to an arrest stems from two concerns:  protection of the officer, and prevention of destruction of evidence.  The first is not implicated by a cell phone, and the second is obviated by its seizure.  The search of the cell phone is not needed for either, and thus requires a warrant.

Roberts runs into a problem, in the form of the Court's 1973 decision in US v. Robinson.  There, a police officer had pulled a cigarette pack from Robinson's pocket after arresting him, opened it, and found drugs.  The lower courts had thrown out the search, deciding that the cigarette pack didn't pose a threat to the officer, and his seizing it prevented the destruction of any evidence it might contain.  The Court reversed, holding that the authority to search incident to arrest "does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect."  Since then, courts have generally followed the "container" theory:  if the police have the right to seize a container, they have the right to open it.

This is where Roberts' opinion takes off.  Roberts thoroughly discusses all the capabilities of smartphones, and concludes

it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives -- from the mundane to the intimate.  Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.

The opinion closes with the observation that cell phones are but the latest step in the March of technology, and "the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."  This is about as close to the "Living Constitution" concept that you're ever going to see Roberts get.

Having brought the privacy interest in digital technology into the 21st century, where do we go from here?  Twenty-five years ago, in Smith v. Maryland, the Court upheld the use of pen registers -- devices which allowed the police in that case to monitor what numbers Smith was calling -- holding that it wasn't a search, because Smith had no privacy interest in those numbers.  That's been the legal basis of the NSA's metadata collection program, in which it retrieves the numbers that everybody calls in the hope of spotting patterns of communications relating to terrorist activities.  I think Riley puts Smith in trouble.  The Framers certainly couldn't have imagined the government collecting data on who calls who throughout the country, but I'm pretty sure what they would have thought of it.

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