Initial impressions from the oral argument in the Supreme Court cell phone search cases

April 29, 2014

This morning, I attended the Supreme Court arguments in the cell phone search cases, United States v. Wurie and Riley v. California. Here are some initial impressions of the argument, with more blogging to come:

1) The Justices mostly seemed to agree that computers had created a “new world,” and that there was a need for some kind of computer-specific rule instead of the Robinson rule. In other words, there wasn’t much support for a rule that computers can always be searched in their entirety incident to arrest. So far, so good.

2) At the time, there wasn’t clear support for a bright-line “seize-and-hold” rule that a warrant is always required. If I had to guess, I would guess that Justice Kagan and Justice Sotomayor favor a bright-line rule of “seize-and-hold;” they were the most skeptical of the alternatives. But I’m not sure there were other votes on the Court for that.

3) The rule that seemed to have the most support, at least based on the arguments, was some kind of middle ground rule. Several Justices seemed to want a rule that preserved some kind of search power in some cases but wouldn’t let the government search everything in every case. Justice Kennedy suggested this, as did Justice Scalia. Justice Alito also seemed to go along these lines, I think, although his questions to defense counsel were generally pretty critical. To put it in language I have used elsewhere, the Justices wished to engage in equilibrium-adjustment. That is, they wanted a rule that preserved the balance of government power across the shift from physical evidence to digital evidence.

4) If I’m right about where the Justices are, I suspect we may end up with some kind of middle-ground rule that says that some kind of warrantless cell phone searches are permitted incident to arrest. The hard question is, what’s the middle-ground rule? The Justices didn’t make much progress on this during the argument. I suspect they’ll find a way to say that the narrow search in Wurie (the flip-phone case) was allowed, but that there are limitations that will block the government from searching broadly in every case. Justice Scalia suggested that the “reason to believe” standard from Gant might work. If I had to guess, that might be a starting point.

5) If all of the above is correct, the Justices still have significant work to do in crafting a new rule, and not a lot of time in which to do it. If you go with a bright-line rule, the opinion pretty much writes itself; the choice of the bright line rule makes the decision easy to craft. But the middle-ground approach involves lots of different possible variables, with hard choices to be made among which variables should matter and how. That makes it tricky to craft, especially in a tight time window. To make things harder, there aren’t many examples of middle-ground answers from the lower courts. The only middle-ground approach that I recall from the lower courts was Judge Posner’s opinion in Flores-Lopez, which wasn’t necessarily a successful effort.

6) This is getting really in the weeds, but one complication of deciding these cases is that there are two cases with different facts. When the Justices are divided and there is no majority approach, we apply the Marks rule to find out what opinion is binding below: The narrowest opinion in favor of the winning side becomes the law below. But with two cases and different facts, there’s a chance that different Justices could draw different lines so that there is no one coherent rule that is binding under Marks. I gather the Justices will work hard to avoid this, especially in light of the time crunch. Ideally the votes will line up at conference so that one Justice writes both opinions together, with the hopes that there are five votes as to both the resolution of Wurie and Riley for whatever approach that Justice proposes.

7) Finally, let me add the caveat that several of the Justices asked questions of both sides and didn’t reveal a strong inclination either way. The Chief Justice, Justice Ginsburg, and Justice Breyer were all active questioners, and I’m not sure where any of them might land. So this is a case that could go in any direction. I’m guessing the votes eventually go with a middle ground rule. But who knows.

In a future post, I’ll look more closely at the pros and cons of different middle ground rules the court might chose, if it goes that way. But this post is long enough, so I’ll save that for later.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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