Something seems very wrong here, because the report is that the Supreme Court has unanimously held in Riley v. California (NYT, SCOTUSblog, opinion) that the police need to get a warrant before rummaging through the cellphone of someone they've arrested.
Have the terrorists finally won?!
The opinion, apparently written by someone posing as Justice Roberts, is quite broad and there's no reason it shouldn't apply to laptop computers, for example. In fact, the Court specifically notes that "many of these devices [cellphones] are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." The Court holds that the privacy interests involved are too strong, and the government's counter-arguments too weak, to justify an exception to the warrant requirement. In short, "[o]ur answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant."
Step two: get other judges to stop handing out warrants like Halloween candy. But step one is good.
Or at least it seems that way. Someone has clearly kidnapped at least some of the justices, and so there must be more to the story.
Justice Alito seems to have freed himself in time to write a quick concurrence. He says that (1) he believes the rule allowing searches incident to arrest is much broader than people think it is (i.e., wasn't originally based on officer safety but on "the need to obtain probative evidence"—which I think would justify any search); and (2) he would be happy to reconsider the result in this case if legislators enacted laws that drew reasonable distinctions based on categories of information "or perhaps other variables." Great—they'll come up with some "other variables" all right. Thanks for suggesting that.
But worrieth not, sayeth Alito; trusteth in thy elected officials. Indeed, "[i]t would be very unfortunate," he concludes, "if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment." Seriously?
Given what our elected officials have been up to over the past 13 years, I don't see "the blunt instrument of the Fourth Amendment" as the problem. (The elected Obama administration argued that searching a cellphone is "materially indistinguishable" from searching a physical container, which the Roberts-impersonator said was "like saying a ride on horseback is materially indistinguishable from a flight to the moon.") Personally I would like to see a lot more elected heads get knocked with it, and this is a pretty good start.