should be given to data stored on smart phones. this is an hour.

>> we'll hear argument first this morning in case , riley v. california. mr. fisher? >> mr. chief justice, and may it please the court: this case involves applying the core protection of the fourth amendment to a new factual circumstance. it has always been the case that an occasion of an arrest did not give the police officers authority to search through the private papers and the drawers and bureaus and cabinets of somebody's house, and that protection should not evaporate more than years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their pockets. >> just just to test the principle for why the police ca search and seize some some objects. consider a gun. the arrestee has a gun on his person and the police take the gun. is part of the reason for that seizure to obtain evidence of the crime or is it just for the safety of the officer

and the safety of the community? >> well, what this court said in robinson at page is the reason supporting the authority for a search incident to arrest are the two chimel factors, which are gathering evidence to prevent its destruction, and officer's safety. now >> what about gathering evidence in order to make the case? for instance, with the gun, could they take fingerprints? the the gun is in the police station where the arrestee is being booked. a, could they take fingerprints? b, could they copy the serial number? c, could they see how many shells were left in the chamber? they obviously have to empty it for safety purposes. all for the purpose of building the case, of of obtaining evidence? >> yes, of course that's done every day. once the gun is in the police the police department's lawful possession, i think edwards says that they can do all that. >> so so if if the proposition then, if the principle then is that some objects that are obtained from

the arrestee can be examined in order to build the state's case, is that at least a beginning premise that we can accept in your case, although, obviously, there are problems of the extent and intrusiveness of the search that are are your case, but not in the gun hypothetical. >> well, justice kennedy, the court has never described that as one of the things. if you want to think about this case the way you thought about the automobile search in gant, it would be a beginning premise; but i think you're right, that even if that were a beginning premise , it would be only that, a beginning. in footnote in edwards, this court said that any search incident to arrest still has to satisfy the fourth amendment's general general reasonableness. >> i think you're right that gant is probably the best statement in support of the principle that i've i've suggested, and then you might say, well, that's limited to automobiles >> right. >> and then we're back where we started.

things to understand if you want gant, because both in terms of its history and its modern application, it's dramatically different from what we have here. >> well, mr. fisher, before we do that, have you been accurate in what you said about robinson and about the court's cases? in weeks, which was quoted in robinson, the court said: "the right, always recognized under english and american law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. is that historically inaccurate? do you want us to repudiate that? >> no, your honor. what weeks said, you quoted it, fruits and instrumentalities of the crime have always been something that could be seized from a person. now, weeks, of course, as this court said in robinson itself, was dicta. and there was that historical authority to take fruits and evidence i'm sorry fruits and

instrumentalities of the crime. which did it say? >> did it say instrumentalities or evidence? >> weeks used because justice alito said evidence. you you changed it to instrumentality. is one of you wrong? >>weeks uses the word "evidence, " but, justice scalia, because it was not at issue in that case, the the bishop treatise that you cited in your thornton concurrence talks about tools and instrumentalities.

smartphones do present difficult problems. but let me ask you this: suppose your client were an old school guy and he didn't have he didn't have a cell phone. he had a billfold and he had photos that were important to him in the billfold. he had that at the time of arrest. do you dispute the proposition that the police could examine the photos in his billfold and use those as evidence against him? >> no. that's the rule of robinson, that any physical item itemon a arrestee can be seized and inspected and then used as evidence if it's useful evidence. we draw a line.

yes. what is the difference between looking at hardcopy photos in a billfold and looking at photos that are saved in the memory of a cell in the memory of a cell phone? >> the difference is digital information versus physical items. physical items at the scene can pose a safety threat and have destruction possibilities that aren't present with digital evidence. what is more, once you get into the digital world, you have the framers' concern of general warrants and the the writs of assistance. well, how does that apply how does that apply to these hardcopy photos in the billfold? they don't present a threat to anybody. and i don't see that there's much of a difference between the government argues there's a greater risk of the destruction of digital evidence in a cell phone than than there is in the photos. so i don't quite understand how how that applies to that situation.

>>welll, let me take those one thing at a time. i take it the theory of robinson , this is the theory the government itself propounded, is that any physical item, because it contained a razor blade or a pin or anything, needs to be inspected to be sure. and so you have a categorical rule because of the ad hoc nature of arrests that police don't have to distinguish physical items one from the other. >> well, but the but in the wallet we'll just stick with justice alito's hypothetical they find a business card or something which shows a car rental service can they turn the they're not looking for a pin or an explosive. the can they do that? i think they can, if nothing else, under plain view once it's kennedy.

but i really don't want to fight >> no, they turn they turn the card over. now, when you have digital evidence, the categorical rule, we submit, cuts exactly in the opposite direction. because digital information even the notion of flipping through photos in a smartphone implicates vast amounts of information, not just the photos themselves, but the gps locational data that's linked in with it, all kinds of other information that is intrinsically intertwined in smartphones. like facebook or a twitter account? there's no real there's no any privacy interest in a facebook account is at least diminished because the point is you want these things to be public and seen widely. >> well, mr. chief justice >> so i guess my question would be: could you have a rule that the police are entitled to search those apps that, in fact,

don't have an air of privacy about them? >> i think that would be extraordinarily difficult to administer that rule. and let me tell you why. because most of the information on smartphones is private. much of it is just, like the on somebody's phone and not shared with anybody. even a facebook account is a limited universe of people who have access to it. you're right that i mean, you know, maybe it's people; maybe it's a hundred people. but it's certainly not private in the sense that many of the other applications are. >> think it's fair to say you have a sliding scale and there's some stuff on a phone that might be posted on the

internet, for example. the ifficulty with that case, if you wanted to address it in a future case, would be the intertwined nature of information on a phone. >> well, then, the evidence that is seizable under the warrant is reasonable and justice pointed out that the fact is reasonable. >> let me talk a bit about. this court said the fact the police could have gotten a warrant but didn't doesn't

excuse a 4th amendment violation. >> it knows to the fact that this is searchable under 4th amendment standards. >> with a warrant justeice kennedy. a warrant triggers the 4th amendment particularly requirements so the magistrate says this is what you can look at and didn't. in this case, the prosecution introduced photos but he said we looked at a lot of stuff thon phone and that is what caught this eye. >> how does it work for the magistrate? a warrant can be obtained. but a warrant for what?

what would the police have to show. let's take your very case. they have seized which is probably. seized the phone. they secured it. now they want to search it. so what would the warrant have to say? >> we give an example of a warrant in the footnote of the brief. i believe it is footnote three. and many more are available on the web from states that require warrants. what they do is say the police officer testifies, perhaps somewhat like at the suppression hearing, i suspect this fellow is in a gang and i believe gang members keep things on the phone and these files are likely to obtain evidence and the warrants say this is what you can look at, here is what can't. >> you told us -- that is hard

to figure out what you can and what you can't. it is easy for a magistrate but impossible for an arresting officer? >> i think it is much easier for a magistrate that is removed than an officer under the stresses in the field. i agree it isn't going to be perfect. so let's look at what happens -- >> on the same lines, the point you make else where is the cellphone or smartpone has the person's whole life. what part of the smartphone isn't likely to have evidence? pictures, videos, and calls -- i guess it is similar to what other issues. i don't know what a magistrate puts in the warrant?

>> i would say his banking app. >> you don't think it will say he deposited $10,000 in the account and that coincides with a drug deal. >> what the government says is let the officer look and have a backend hearing which they suppress the stuff he wasn't supposed to look at. under our rule, once the officer has the warrant, leon kicks in and you don't have to have hearing because once the officer does the proper search you don't have too a suppression hearing. and there is another thing in the warrant, it isn't just what can be looked at but it is how it can be kept. and this raises 4th amendment concern. for some crimes, not just

downloading the information for the crime of arrest but they are keeping the information in growing databases. >> what if you have a device that doesn't have the information but like a fit bit that tells you how many steps you take and the defendant says i have been in my house all afternoon and he wants to check to see if he walked four miles. is that something they can look at? >> i think probably not. and this is the categorical rule in robinson where it sweeps in the categorical rules in one direction and i think one for digital' information would sweep in. the fit bit, and this is true moreso of smart phones, tells you the information the court was concerned about in kilo.

modern smartphones work the inside of people's house and monitor inside of people's body. >> what if the phone was an old fashion flipphone with the capacity to take pictures but a more limited memory. would that be a different case? >> that would be part of the conversation in the next case perhaps. i think the easy way to decide the case in 2014 is saying digital evidence kept on modern cellphones are different than physical items. i don't think it is worth going back in time -- >> when if the person had on a compact disc -- >> that might be the same cases you have now. remember the phone in this case had a removable memory card as

many still do. we were going to talk about destruction of evidence. that is one answer to the problem. it could not have came up because it was on a removable memory card that could not erased or password protected. we have examples to the governments wiping not standing up. >> you were describing a difference between the downloading by police into databases that they keep forever. what happens with materials that are returned pursuing to a search warrant -- are they precluded from doing that? >> i take it the ordinary rule is if the police lawfully seizes evidence in the physical world if might have to be returned to the owner but a photo copy or

photograph remains in police photos and it is information they can use indefinitely. you have problems when they apply that rule. the federal government acknowledges it is keeping in a evergrowing federal database some of the information seized from smartphones. >> i don't know if you answered me. can they do the same thing once a search warrant is issued? >> not necessarily. it can delinate rules of how long you are allowed to keep the information and who can look at it or not >> i don't ever remember a prosecutor coming to me with that kind of delination.

>> i think that is what is happening in the digital world. >> would there be exitancy that would allow police to look at cell phones and what would they be. >> absolutely. there would be times at the scene where it would be allowed about and hypothetic bomb or ambush as represented in chadwick. the concern about remote wiping and as the experts describes by many others we don't think it would ever arise to the degree of legit concern. >> i don't know understand your first circumstances. when there is a bomb but you don't know till you look in the phone. whether his associates are on

the way to kill the officer. you don't know until you reach into the phone. how can that be an exiting circumstances? >> in footnote nine of with a suitcase is similar. there is a hypothetical example of how the circumstances might apply >> it seems to me you would never be able to say surrounding situations give me reason to suspect a bomb is on the phone or confederates are on the way. >> i am saying if you had that you would not need a warrant. >> there is not much if the

lawyer is arrested and you want to read the briefcase or the diary and you site i think page seven in the 1916 case. is that about the best discussion you can find? >> we have briefcases with the diary and there is not many instances of it >> it is important if we formulate standards that limit the extent of the search. that is one of the problems in the case. if say, we rule for the government in its case, if we rule for the government in its case, and worry for the federal case, is there some standard where we could draw the line

which would result in a judgment in your favor? maybe that is not a fair question. >> in my case, we have an exploring case where the state isn't equivalent to what it gets. can i say something? >> i am going to say something first. if the phone rings can the police answer it? >> there are cases on that. all of the cases we found were where the police had a warrant in hand and they have been held to yes, the police officers can answer. unquestioni unquestioningly -- >> a warrant for what? >> for somebody's arrest. >> how does that extend to the ability to answer the phone? >> no, i think an arrest and

search of the area is what they need. certainly you could look at the caller id coming through because that is in plain view. but the question about the diary, if there a couple aspects i hope to draw out. people don't carry diaries with them. and it would be an unusual circumstance where someone did. you might have a hard case. this is the opposite world. the modern reality of smart phones and there is an item for a professional and anything. you cannot leave the house without it and consider yourself to be responsible and safe. so to take the world where the police might try to say week get the stray diary -- we can --

because of the rule under robinson and apply that to a world where everyone has everything with them. >> including the criminals who are more dangerous and elusive with cellphones. that is the other side of this. >> the 4th amendment has a balance looked in. we are not saying cannot look at dijgital information. we are saying they can seize it, freeze it and get a warrant to look at it. >> is it significant this information wasn't protected by a password? that doesn't effect the expectation of the priacy? >> if the othside was saying th wasn't is search -- but i think that would agree password protected doesn't matter.

>> i know they argue it doesn't matter but i am wondering if your position is weakened by the fact the individual didn't seek the greater protection of a passwo password. >> i don't think so. >> there is no dispute they could look and see if they

contained evidence of crime. >> simply because m riley instead carried his photographs in digital form on a smartphone. the shift that there's no photographs does not -- >> so in one of our court decisions in the past, a series of justices asked or noted that many of our rules were based on practical considerations.l practically speaking, a personnd can only carry so much on their person. that is different because carrying a billfold of photographs is a billfold of photographs. it's, you know, anywhere from one to five generally, not muchn more. buth now we're talking about potentially thousands, becausekg with digital cameras, people take endless photos. and it spans their entire life. you don't see a difference between the two things, what has

now become impractical? a gps can follow people in a way i that prior following by police officers and cars didn't permitd >> we certainly see a distinction, and we certainly see a possibility that in somert cases there could be potentially be a constitutional difference. what we don't see is that in this case, on the facts of case or anything like it and like the ordinary case, there's a constitutional difference froma. those phenomenon. the theory -- >> by the way --hose >> the theory, even if i'm carrying only five photographs or if i'm carrying two letters as was the case in -- [inaudible] that then-judge cardoza decided in the '20s, they are likely to be very personal, very t private -- >> mr. dumo in, t. >> -- increases the invasion of privacy. >> on your argument, the arg solicitor general's arguments

too, a person can be arrested for mig. a person can be arrested for driving without a seat belt. and the police5#teá1z could takt phone and could look at every single e-mail that person has written, including work e-mails, including e-mails to family members, very intimate communications, could look at all that person'sback records, could -- bank records, all that medical data, could look at that person's calendar, could look at that person's gps and find out every place that person had been recently. because thatbv0 person was arred if or driving without a seat belt. now, that strikes me as a a different kind of world that the kind of world that you arew3ky has family in a billfold. doesn't it strike youb that way >> i think to answer that one can always think of marginal cases where --nk y >> i don't know why this is a marginal case. >> it is not --be >> your argument and thes solicitor general's principal

argument applies to any arrest. and it applies to everything on a cell phone.ce people carry their entire lives on cell phones. that's not a marginal case. that's the world we live in, isn't it? >> we hear that repeatedly. h the facts of this case are not somebody's entire life on a cell phone. this cell phone had a handful o. contacts. i don't think this is in theth record, but what we understand is there were 50 some odd -- 250 some odd contacts, perhaps 42 -- >> [inaudible] >> 45 seconds, maybe a minute each. >> make a rule not t for this paragraph case, but this -- particular case, but for this category of cases. and i think what justice craigen pointed out -- kagan pointed out is -- [inaudible] take an offense like failing to buckle up, even driving under the influence. not gang crimes which is what wi have in this case. it's your rule then that the cell phone is fair game no

matter what the crime, no matter how relatively unimportant the crime. is it all misdemeanors? all misdemeanors and that opens the world to the police? >> it is true that the court typically and properly in this area draws categorical lines, and that is what the court said in robinson it was doing.at t it also is true, the court has repeatedly said those lines are drawn based on the generality of cases. they are not drawn paced on the marginal case -- [inaudible] >> but i just --gene >> this case is in the heartland. >> mr. dumont, i guess what i'm trying to suggest to you is that you call it marginal but, inact fact, most people now do carry their lives on cell phones, ands that will only grow every single year as, you know, young people take over the o world.g [laughter] i mean, that's not a marginalari case. that's what -- they'recomp

computers. they have as much computing capacity as laptops did five years ago, and everybody under y certain age, let's say under 40, has everything on them. o >> i think you need to look at the generality of cases, and in the generality of cases, first of all, you will not be dealing with minor crimes, you'll bet dealing with concern. [inaudible] >> you saying we're just resting on the discretion of the officer? arresting on the discretion of the officer? because if that's so, then it leads to the next question, well f that's so, then we'll get a warrant. >> you are trying to draw lines applied by the officer in the field, and often when there is not time to get ai warrant either because there's need to t know the information a or because -- >> well, let's leave, let's leave exigent circumstances out of it. tsa an easy case. -- that's an easy case. you're not arguing for exigent circumstances here. >> what i'd say is, to go back to justice scalia's point, our

argument is that the same thing. mr. fisher concedes, the same interest that mr. fisher, i think, concedes the search of the person and seizure of the phone -- which are the exigent circumstances type argument, in other words, they are the needpp to protect officer safety andpr the need to preserve evidence. and the fact is you don't know with a phone. the officer doesn't know with a phone whether there's a safety concern or an evidentiary concern -- >> has there ever been any basis for the generality that there's a safety concern? do you have a case where -- certainly not where c the phone exploded, but where the phone was used to trigger a device or anything like thatsome.fic >> we don't have a case --al >> [inaudible] >> here's a case from california, it's called natoli. there's a late night arrest. it starts with a speeding ticket, and off the highway latt at night it develops that maybe there's more going on. the person looks to be under the influence. he's taken out of the car, then it looks like there might be ahi gun. the officer looks at the cell

phone, the first thing he sees f is a picture of what appears ton be the driver standing with two assault drivers, arms akimbo,it posing with his assault rifles. now, i would say that that changes the situational in awareness of the officer and provides valuable information that was necessary at the time and could not have been gotten a later at the stationhouse -- >> what does that have to do with my question about a bomb? t >> merely saying it just has to do with safety. so, no, i can't point a case where today stopped timothy mcveigh and found notesh about -- >> i would assume you need to operate the phone to set off the bomb, so once the police have the phone, the bomb's not going to be set off. >> that is true. but it's also true with all the objects in all the court's prior cases, in other words, once inpo robinson the police had secured the cigarette pack, there was no question whether there was a razor blade or heroin --

>> could e ask you a questionck. about the extent of your theory? we're talking about smartphones, which are mini computers. but your theory would apply to ipads, computers, anything that's, for example, sitting next to a person in a car. at their desk if they're arrested at their desk. anywhere, if they're carrying it in theira hand, because you seea lot of people carrying the ipad or something comparable, a tablet of only sort. your theory would permit a search of all of those things. >> objects that are on the person or immediately associated with them, for instance, in a purse. it doesn't necessarily extend to things that are sitting nearby. the court has drawn a clear line there. >> well, how would you? what is the rule? you're saying on the person.that suppose it's in the car in a holder or suppose it's in the passenger seat. are you saying that's -- you

don't want to express an opinion about that? you only want to talk aboutt what's in somebody's pocket?t >> obviously, i think the courtl has drawn different rules for that situation. if it's on the car seat and if o the person's been removed fromve the cadr accident then under -- car, then under gant if there'sd reason to believe in a crime, they can search it. >> carrying my laptop in my backpack -- >> and if your backpack is on your back when you're arrested,m yes, we think that's included. so let me go back to this volume question because there are two things about a cell phone that might justify some sort of special rule, there's the volume question, and then there's the connectivity and networking question. now as to the volume question, first of all, we don't really have it here, but i concede that we could have it in other casen and what they seem to be concerned about is the idea if you have enough or information on enough different devices and the police spend enough time looking at it, they could build kind of remarkable pror trait that some of the justices por

alluded to in gant -- sorry, ind jones that really would be qualitatively different from what has ever been done before. now, there are differences from jones. that was governmenttati surveillance, and this is some choice the person has made to keep a certain amount of information on their phone and then to have it in his pocket.om but weeo think there's a possibility you could get to that kind of qualitatively different search, but it's miles away from this case -- >> okay, so what's your rule?es >> sorry? >> there are three possibilities. possibility one, smartphone. no, get a warrant unless exigent circumstances. possibility two, question, it's just like a piece of paper. p that you find in his pocket. or possibility three, sometimes yes, sometimes no. all right, which of those three is yours? >> our position is that the core information like this that is contacts -- >> no, i mean of my three choices. [laughter] i mean, call the first strike

never except exigent without av. warrant, always you don't need a warrant or, three, somewhere in between.whic which of the three choices is yours?n >> it's in between. >> between. okay, now i get to my follow-ups question. myl follow-up question is please tell me what your in-between rule is. >> and my in-between rule with the explanation is that forhe information that is of the same sort, that includes diaries, letters, all other kinds of evidence, purely evidentiary, photographs, address books, for evidence of that same sort, the same rules should apply. the digital -- and i would lean for -- sorry. but the last explanation for this is to -- >> mr. dumont -- >> i'm sorry, justice kagan.noth >> i guess i just don't understand that. you said if it could be. everything could be reduced to a piece of paper.

all your bank records, you could have them on you.k all your medical records, you could just happen to have them on you. i mean, that would be so with absolutely everything, wouldn't it? >> the bank records, of course, the police can get from the bank, because they're the bank's records, right? with a subpoena, not with a search warrant.a so to the extent -- >> well, i think the notion that you could get them legally in some other way has never justified an illegal search otherwise. >> no. but i think it goes to the question of how sensitive is this information that we'reensi being told is now routinely -- - >> your rule is sometimes. so i say sometimes what's that,t and you say if it's the kind of thing that the police could have searched for if it wasn't on the computer, then they can searchr for it on the computer. now, since they can search forcp everything in your pockets before, when it isn't the computer, then why isn't yours everything? i mean, byr the way, they don't know whether a call is or is not going to turn out to be evidence

when it's in your trash box if that's wherever you put it, i don't know. they don't know that until theyo read it. so i guess what you're saying it i thought it was category two sometimes, but really it's is category three, always. now, why am i wrong?wr >> i think he inverted two and three. [laughter] >> leaving that aside -- >> that gives you time to think. [laughter] >> if the police are looking for, have a legitimate investigative purpose for looking at the information on the phone to see whether there's evidence of the crime of arrest or another crime, it seems to us that they should be, at a minimum, be able to look at the kind of information they would have been looked at -- >> so, but that's just a concession on your part, isn't it? smartphones carry a lot of

information. gps tracking information, the police could never have gotten that before. so you're saying that isgp protected? >> not saying it's protected, i'm saying it raises a differen? set of issues.t >> it seems to me that in order to try to give some answer to justice kagan's concerns that maybe the distinction ought to be between serious and nonserious offenses. i don't think that exists in our jurisprudence, correct me if i'm wrong. >> i think that's correct. the court has previously declined to draw that line.seri now another -- >> by the way, gps information, i don't want to admit, but my i wife might put a note in my pocket. stephen, remember turn right at the third stoplight. [laughter] three blocks forward. of course you could have lookede at information that showed where you had been and where you werea going as long as it was ons paper.on now, it's in a gps. so how does your rule help? >> the gps would see if he did,

in fact, turn right at the thing or he'd gone somewhere else. [laughter] >> again, we can conceive of situations in which the amount of information and the kind of search would lead to a qualitatively different result. we think -- >> you could amend your answer,d and the answers are for you, not for us. but you could append your answew to say not just anything that somebody could have had. e person could have had a diary that records every place the person has ever gone in the last year. theoretically possible. but you could say something that has a realistic analog in the predigital era. we have a similar, a problem here that's similar to the problem in the jones gps case. you have a rule of law that was established in the pre-digital era, now you have to apply it in the digital era, or you're askef to apply it where the technology changes a lot of things. but if there is a close analog

in the digital era to something that would have been allowed in the pre-digital era, that may be a different story. >> we certainly think that's right, and we think that that covers, you know, the information that's at issue here, the photographs, the shori videos, contact information. >> and you're not willing to -- >> text messages. >> you're not willing to limit your position to searches that either are in order to protect the officer or in order to preserve evidence or, number three, in order to find evidence of the crime of arrest? you're not willing to limit it that way. you would say whatever's on the person you can, you can search. >> we think of the available -- [inaudible]ts. is by far the most historically based and the most plausible one. because the old cases, you pointed out -- that gets you -

into the arrest for, you know, for not wearing a seat belt, and it seems absurd that you should be able to search that person's iphone.ke> does an analog with photos,lg the arrested person has photos, pre-digital age, of course you can look at them. on the phone there are photos,

absolutely analogous, except there are 10,000. it's, indeed, his entire life history if photos. on your rule can the policeman look at the photos by analog or not because there are 10,000, okay?re what's the answer? >> in theory, yes. police can look. in practice -- >> what we have is, by the way, you understand where i'm going. i think there are very, very few things that you cannot find in analog too. in pre-tingal age -- digital age searches. and the problem in almost allll instances is quantity and how qa far afield you're likely to be going. >> right. and these -- >> so i accept your rule. >> the fundamental doctrinal basis, rational basis from theae robinson rule, i think, is that the fact of arrest -- this is te what justice powell said and justice, well -- the fact of the

arrest necessarily and legitimately largely abates the privacy interests of the individual and his person and any he or she has chosen toha carry on the person. now, modern technology makes it possible for people to choose to carry a great deal of information. but that doesn't change the fact that the reasonable expectation if a person is subject tole custodial arrest is that the police will search the person -- >> mr. dumont, are you saying, essentially, that nobody has any expectation of privacy or that somebody has a dramatically reduced expectation of privacy in anything that the person actually wants to keep on hem ao all times? in other words, one has to keepo one's cell phone at home to have an expectation of privacy in it? >> no, we're not saying that at all. but what we are saying is that people do make choices, and those choices have consequencesk and the consequence of carrying things on your person has always been if you are arrested, police will be able to examine it and see if there is evidence of

crime. >> thank you, counsel. mr. deegan? >> mr. chief justice and may it please the court, i think that it may be helpful to the court before exploring possible alternatives to a categorical robinson rule to at least briefly understand why there is a categorical robinson rule and how cell phones implicate many of those concerns. the categorical robinson rule responded to the fact that when a person is carrying something on their person and they areit subject to a legitimate probable cause arrest, their expectations of privacy are considerably reduced. not eliminated, but considerably reduced.ex and the government, on the other hand, has several very compelling interests at the moment of arrest that are vindicated by conducting a thorough search of the person and the things he has. it avoids the destruction of evidence, it protects officer safety, and it allows the discovery of evidence that's relevant to the crime of arrest to enable prosecution.

>> but, mr. dreeben, it's the -- the understanding was when there's time, get a warrant. so here you can seize the phoner and you can secure the phone, and you could go to a magistrate within an hour get permission to search. but what is the reason for the cutting up the magistrate -- cutting out the magistrate here? the instrument is itself is notn going tog be any danger, becaue the police have taken it, and they've disabled it. so i don't understand why we cu the warrant out of this picture. >> so several answers to that, justice ginsburg. the first is that you could probably say the same thing about almost everything that is seized under robinson and edwards. once it's in the police's hands, they could throw it in the back of the patrol car, in the trunk, it would be safe, and they could get a warrant. but the balance has always been struck at the moment of arisk to

allow the officers -- arrest toe allow the officers to fulfill the compelling interest in the matters i've previously described. the second and i think very critical thing about cell phones is they do differ in the amount of information that a person can carry on them and the amount of revelation about a person's life. that is true. they also differ in that they greatly facilitate criminal activity, they contain a great deal of evidence, and most critically, they are subject to destruction in a way that ordinary physical items are not. even if an officer has a cell phone in his hand, he cannot guarantee unless it's disconnected from the network or somehow protected from the network that there won't be a remote wipe signal sent to the phone -- >> do you have cases where thatr has happened? >> i have anecdotal reports from the fbi that that has happened, that that they have looked into the question of to what extent can you protect a phone through the use of things like bags. i think one of the important things to notice, if you throw a phone into a fair a day bag

which ish supposedly going to b able to block network signals,tw when you openor it up, it has to be similarly shielded, or it will pick up a signal from a cell tower. and the fbi tried to build a faraday room that they later discovered verizon had put up a cell tower on it, and that put out a strong enough signal --to >> we've had a couple of statesp where this has been so, where wa they've had a rule that you can't search. michigan, i think, and vermont. and is there any instance out of those states where these scenarios have taken place? >> i can't speak, justice breyer -- >> you don't know of any. i take it you don't know.? >> i don't have any access to the -- >> all right. so isn't this a problem that might be postponed because we have warring technologies, etc.o and is it, you're saying now we should allow searches of all phones because there might be a technology that hasn't yet, in fact, been used in any of the

states that have this rule. are -- that sounds a little hypothetical. i'm not surean how to handle it. >> well, i think there's clearlo the technology available andgy t growing technology to wipe phones remotely, but the other problem that comes back to justice ginsburg's point isetti encryption technology is increasingly being deployed in cell phones. that ison something that clearle is on the rise. and when a phone is turned off or if a lock kicks in and the phone incriminates, it can be -i >> how about putting, let me can start because you were making that argument in your brief, and i have three related questions, okay? why can't you just put the phone on airplane mode? >> i answer that one first? >> yes. >> first of all, it is not always possible to find airplanp mode on all the 500, 600 models of phones that are out there. the officer has a lot of things to do when he arrests suspects. say he arrests five suspects in

a car and they each have three cell phones. trying to put each one of them into airplane mode and go the -- >> you're confusing me. because if you haven't searched on the scene, then the wipe is going to happen.oing if you've had enough time at the prescene to put it on airplane mode, the wipe hasn't happened. >> well, that's not necessarily -- >> i'm a little cob fused about -- confused about what this argument is. either you do it at the scene and you protect the phone, oro you do it at the station, and you have enough time to get the warrant by putting it on airplane mode. >> you don't necessarily have enough time to get the warrant if you do kit at the scene. >> i don't disagree. put it on airplane pose. >> even if you bring it back -- the function that we're going to have airplane mode, of course,sm should craft a constitutional rule around airplane mode assumes that cell phones are noa going to be used in airplanes in the next five years. i don't think the court should found a constitutional rulingke on -- >> i don't disagree with you,

but you're asking us for a constitutional principle based on technology that might or might not do something in one or more cases. but not in the general -- >> i think what i'm trying to suggest, justice sotomayor, is the traditional instances include the potential forse destruction of evidence. that is very real today.estr it's petitioner who is asking for a new rule.. we're asking for the application of the robinson rule, and if the court is not willing to apply the robinson rule, then primarily i think the best rule l to apply -- >> t well, but that's not quite accurate. what would you do under the robinson rule with an attorney's briefcase? >> the attorney's briefcase mayo prevent particularized problems because of attorney/client -- >> and opportunity that present the exact problem that every cell phone has? >> no.- >> i don't think that quite works for it. >> i was referring to thene privilege rule. the lower courts that haveth looked at it, this court has not, lower courts that have looked at the question have said

that if a person is arrested holding a briefcase, the police can opens the brief case whethed locked or unlocked and look a it contents. they can look for evidence l that's relevant to criminal activity. and they do thatnc in a way thal is minimally invasive of privacy. they're not just doing it for wy the sake of doing it, they're looking for evidence.hat >> well, the tax return that's on -- some cell phones have ta returns, so you have the tax return of the jaywalker lookinge for a crime. >> yes. and i would acknowledge, justice kennedy, that if the court isav looking for a rule that limits the ability of police to search cell phones because cell phones are different from paper itemser in some respects but not all, that the most reasonable rule to apply would be one that says when there is reason to believe that there's evidence of the crime of arrest on the phone,of the officers can look for that. when there is not, they can't. that will --

>> i ask you a question about that, mr. dreeben?hi because given the variety of things these cell phones have is them, it seems that that's -- you know, it sounds good as amii limiting principle, but it ends up, you can imagine in every case, that the police could really look at everything. i'll give you an example. it's sort of like this case. somebody aarrested for a gun crime, and now we're going to look at all the various things that might be related to a gun crime, so whether he's bought guns, you know, whether he's done searches for gun stores, his e-mails might say something about gun possession or gun purchase. a he might have photographs of hie with a gun. you know, the whole range of things could relate to that crime, couldn't it? >> justice kagan, i wouldit acknowledge that your reasoning is correct. in certain circumstances and for certain crimes. it would not be the case for a jaywalking crime or a bar fight or many of the other minor

crimes, seat belt violations, that are posited on the other side of the equation for the respondent's or petitioner's narrower approach to cell phone searches. but i do think that a couple of things are worth thinking about. first, in a serious offense lik a firearm offense, in this case a drug offense, if the police went and got a warrant, they would be d looking at all the s things, because the only way to execute the warrant on the phone would be to engage in at least a cursory search of everything on the phone towa see whether it related -- >> well, they would be looking at same things, but the wholee idea of a warrant is that aea neutral magistrate tells you yoa can look at those things and hai an opportunity to limit it in whatever way he feels is appropriate. that's a protection. >> well, i'm not sure that i would go so far as to say the neutral magistrate can narrow the warrant in any way that he sees appropriate. this court's decision in grubs and dahlia says it's not appropriate to prescribe the

manner of executing the search.r but i hi the more -- i think the more fundamental point is a that there is a different balance, there is a different balance at the moment of the arrest.alan at that moment society's interests are at their ap gee in -- ap to gee in locatingnd reference, and the suspect has a highly reduced privacy interest. >> thank you, counsel. four minutes, mr. fisher. >> thank you. i think i heard about four orret five different proposed rulestes that i want to just go through,c each of them, one at a time. first, the state talked about a, quote, fundamentally different rule. and i think the justices have already anythinged out what we say in page 17, 18 of our reply brief, is that that would sweep in virtually everything on the phone. to extent it wouldn't, you have a really difficult struggle on a case by case basis to answer the question whether any particular app had fundamentally different

information than existed in the nondigital world. i also heard a suggestion that, well, if a laptop or a smartphone is on minute's person, that's different than if it's sitting next to them. that's not correct if what the government says about passwords and wiping satisfies shamel. remember, that gives authority to search and seize anything in the grab area if there's a destruction argument. so the person who's arrested sitting at his desk at the office and reaching area from his computer would be open to a full search under the government's rule. there was also some discussion about the exigencies at thee scene of an arrest, needing to prevent a remote wipe, preventing a password from kicking in. the first thing to make sure you understand is those arguments can apply only at the scene.ce they don't apply in this case c where an officer takes the phony back to the police station two hours later searches through it at his leisure. so all the arguments about aten

the scene and what the officer needs to be able to do can be breyer's exactly right, at the very best what the government has shown is there mayv6 be certain tightly-limited circumstances where exigent circumstances would apply. and i want to say just a quickck thing on the password question which we didn't talk about but may come up in the next argument. pages 12-14 of our reply brief,w we outline how highly unusual at a factual matter it would be fos a smartphone to be seeded while it's still unlocked and for an officer not to be able too address concern at the scene t that it might lock later. and it's also worth noting that inh a footnote we attached, the government is arguing in lowerg courts that even if it does lock, the fifth amendment does not give the person thes no opportunity to refuse to divulge the password in response to a warrant. so the password argument doesn't have any play if the government wins the argument it's making in the lower courts. justice kennedy can, youbc#>nls distinguished the possibility

between serious anden in serious offenses. i think with all due respect, this court's experience in robinson and atwater preclude that kind of a determination for all the reasons the government argued in those cases.ov and then finally, justice scalia, you mentioned, i think, a couple times the gadget principle that applied to thisou case. evidence you thinkmi you might find on the phone.s there's two profound problems with that. the first is you need to be sure to protect the amount of privacy people had at the founting. a and as i said in my opening, the fact this somebody might i incidentally have an item on his case, even in the rare case -- diary or address book -- arehe leagues away from the kind ofpl information people have now that arte tored at home and -- stored at home. an arrest cannot be an occasion to do that kind c of a search. and, justice kagan, if you run the gant test through the world of crimes, the government might be able to identify a crime hert

or there that would be difficulg to make an argument about. but lots of minor crimes like speeding, as we point out in our brief, dui, littering, all kind, of minor crimes the person can make a fairly convincing argument sometimes that evidence on the phone would be relevant p to that crime of arrest. t the rule the government propounds would do in terms of ordinary police work. this case starts with a traffic stop for expired license plate. it is everyday police work that traffic stops are the beginning of criminal investigations some a leverage point into searches. if you adopt the rule that says, even a gant rule, that says if you can make an argument that evidence on the phone would be relevant to the crime of arrest, take the suspended license. you may have on i'm from the dmv telling you to renew. if that opens up every american's life

to the police department, not just at the scene but the station house and downloaded into their computer forever, you'll have fundamentally change the privacy that we have enjoined since the in booktv in utah to visit several of the city's authors and literary sites.