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