Over at Slate’s “breakfast table” series (there is no breakfast table), Judge Richard Posner has a post about Riley v. California that warrants a bit of commentary. My comments are interspersed.

First, from Judge Posner:

The second case I want to discuss is Wednesday’s decision in Riley v. California, the cellphone case. The New York Times quotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules. There have been a number of similar cases in the lower courts, many anticipating the court’s decision.

The quoted “law professor” Posner criticizes here is Orin Kerr. Given how much Orin has written about computers and criminal procedure, I think it would be fair to guess that Orin is aware that there have been lower-court cases on the issue. We don’t know whether the quote was excerpted, but when talking to Adam Liptak about Supreme Court cases it is probably implied that “first … case” means “first … Supreme Court case.” Because Posner does not mention Orin by name, it is not clear he realizes that he is the same person whose article is cited twice by the Court’s opinion in Riley.

The next part of Judge Posner’s discussion:

I noticed a citation in the court’s opinion to a case from my court, United States v. Lopez-Flores, [sic] the name of which rang a bell. It was an opinion of mine issued in 2012, and when I reread it I realized it is almost identical to the Supreme Court’s opinion. It dealt with a cellphone search, discussed the same technologies mentioned in the court’s opinion (such as Faraday bags and remote wiping), explained why a warrant should normally be required for such a search, but also, like the Supreme Court, discussed emergency situations in which a search without a warrant should be permitted, just as in conventional search cases. I mentioned in my opinion “an iPhone application called iCam [that] allows you to access your home computer’s webcam so that you can survey the inside of your home while you’re a thousand miles away. At the touch of a button a cell phone search becomes a house search, and that is not a search of a ‘container’ in any normal sense of that word, though a house contains data.” Whether police search the contents of the home while in the home, or search those contents on a cellphone’s screen, the invasion of privacy (though not of property) is the same. The Supreme Court’s decision accelerated a trend toward assimilating virtual to physical property for Fourth Amendment purposes that would eventually have brought the lower courts to the same point.

Judge Posner’s opinion in Flores-Lopez is cited twice by the Court, but it is a little odd that Judge Posner recalls it as “almost identical to the Supreme Court’s opinion.” One of the two citations by the Court is in a passage where the Court expressly disagrees with a portion of the opinion. Flores-Lopez proposed, among other things, analogizing cell phone searches to physical searches for analogous items: “If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number.” (I think this is what Judge Posner means by “assimilating virtual to physical property,” though I am not certain.)

In Riley (at p.24), the Court expressly rejects that test. Such a test, the Court says, “would allow law enforcement to search a range of items contained on a phone, even though people would be unlikely to carry such a variety of information in physical form,” and it “would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records and ‘keep defendants and judges guessing for years to come.'”

To be sure, Flores-Lopez does contain other claims that more closely resemble some of the Court’s claims in Riley, but from a doctrinal point of view it is odd to treat them as identical. Here, FWIW, is a contemporaneous post from Orin on Flores-Lopez.

The final part of the piece:

The abiding puzzle of “search and seizure” is the insistence of the courts, including the Supreme Court, that the Constitution requires search warrants in all but emergency circumstances, in order to protect what we now call “privacy.” That is ahistorical. The Fourth Amendment protects people against unreasonable searches and seizures, but it does not require search warrants; on the contrary, it limits them, by requiring that they be based on probable cause, on oath or affirmation by the seeker of the warrant, and on a particularized description of the premises to be searched and the items (usually contraband) to be seized. The reason for limiting warrants was that, in the 18th century at any rate, a warrant provided a defense for an officer sued for trespass.

Eventually the Supreme Court turned the Fourth Amendment on its head and required warrants, in nonemergency circumstances (broadly defined, however, to include most searches of vehicles). Warrants are issued in ex parte proceedings—the intended subject of the warrant is not present, for obvious reasons, only the law enforcement officer seeking the warrant is—and so are usually granted even when the officer’s showing of probable cause is quite thin. But the proceeding creates a record that enables a later challenge to the search, though rarely a successful one.

I have no objection to the warrant requirement in its present form, but I am surprised that “originalists” and “textualists” on the Supreme Court accept it. That they do is an illustration that what we call “constitutional law” is not, for the most part, the result of interpretation of the Constitution. The Constitution is the pretext for what amounts to a body of judge-made law, much like the common law of England and America.

I have no real quarrel with Judge Posner’s account of the warrant requirement, though there has been some important scholarship that complicates this picture somewhat. But one should not be “surprised” by the Court’s “‘originalists’ and ‘textualists'” here. Justice Scalia has a well-known opinion (his concurrence in California v. Acevedo) criticizing the Court’s warrant requirement, citing Akhil Amar and . . . Richard Posner. (And Justice Scalia’s Acevedo opinion also discusses why not all instances of the warrant requirement are problematic.) Justice Thomas reiterates some of those criticisms in his dissent in Groh v. Ramirez (joined by Justice Scalia).

So it is not that the Justices are not aware of the problem; it is simply that they sometimes agree to apply precedents they think might be problematic as a matter of first principles. True enough. But most originalists have some theory of precedent, and it hardly follows that constitutional law is “for the most part” not a result of the written constitution. (Here is my previous post on false dichotomies, and here is a related post from Mike Ramsey.)