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Respondents file merits briefs in the cell phone search cases

The respondents have now filed their merits briefs in the two much-anticipated cell phone search cases that the Supreme Court will hear on April 29, United States v. Wurie and Riley v. California. You can read the defense brief in Wurie here and the state’s brief in Riley here. I plan to blog about some of the specific issues in these cases over the next week or so, but in the meantime here are some broad thoughts on the two sets of briefs:

1) For the most part, the briefs followed the predictable pattern of choices I suggested in this post. The government briefs argue Robinson first and Gant as a backup; that is, they argue for a rule of can-always-search first and then a backup rule of can-sometimes-search. The defense briefs focus instead on Chimel, arguing for a rule of seizure but no searches without a warrant. It’s pretty much what the array of rule choices from my earlier post would predict.

2) Some of the arguments hinge on technological questions for which there is no record of current facts and no obvious direction of likely future facts. Consider the strength of the government’s need to search phones incident to arrest to avoid destruction of evidence. The government says that evidence on a phone can be inaccessible if the government doesn’t search right away because phones can be remotely wiped. The defense says that this is no problem, as the government can just turn the phone off or pop the phone in a Faraday cage and it can always come back and get the contents. The government responds that turning the phone off can trigger encryption and that Faraday cages sometimes don’t work. It’s a disagreement that is in part about existing technology and the likelihood certain defensive measures will be taken and what resources will be available to the police. These are technological variables that are somewhat uncertain now and may change in the future.

3) Although most of the arguments in the merits briefs were pretty predictable and effectively made, the DOJ brief makes one particularly unpersuasive argument. On page 54, DOJ argues that searching a call log inside a phone should be permitted, even if a broader search is not, because a person does not have a reasonable expectation of privacy in call logs stored in the phone under Smith v. Maryland. That’s wrong, I think, for reasons I explained here. As I wrote then:

Data, whether in the form of numbers (like telephone numbers here) or text (in the case of a diary), does not have a preordained level of Fourth Amendment protection in the abstract. If you store your diary at home under your bed, you have Fourth Amendment rights in your diary because you have stored in it your home. If you go into the park and leave your diary out in the open, you lose Fourth Amendment rights in what you have left open because you have left it open. The Fourth Amendment rights derive from the steps that the government must go through to retrieve the information in context, not the essential nature of the data itself.

4) It’s unfortunate that the briefing and decision schedule in these cases is so compressed. The respondent’s briefs were filed April 2, and the reply briefs are still to come. Argument is on April 29th, the penultimate argument day of the Term. If the Court hands down these cases by the end of June, as is the custom, the Justices will have to decide the cases in a two month post-argument window. Of course, two months from argument to publication may seem to some like a lot of time. But votes have to be taken; draft opinions have to be written; a majority formed (if possible); language hammered out; concurrences and dissents crafted; and everything finalized and made as perfect as possible — all during crunch time when the Court must get all of its other tough cases out the door. That kind of time pressure can lead to suboptimal opinions. Given the long-term significance of these cases, that’s unfortunate.

Anyway, those are just a few thoughts. I plan to blog more on the issues raised in the briefs over the next week or two.

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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