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Supreme Court Looks for Middle Ground on Police Searches of Phones

The Supreme Court seemed unwilling to say police can never search a phone without a warrant, but it also seemed unlikely to allow limitless searches.

The Supreme Court hunted for a middle ground Tuesday on how much authority police should have to rummage through the cellphones of people they arrest.

The justices seemed unwilling to say police can never search a phone without a warrant, but they seemed equally unlikely to adopt the Obama administration's claim that cellphones can be searched just like anything else carried by someone who's arrested.

Judging from Tuesday's argument, the court could allow police to search phones for evidence in serious crimes but not to rummage through them in minor ones.

Defense lawyers urged the court to rule that police should be required to get search warrants before conducting any kind of cellphone search, because smartphones can contain so much private information — medical records, political and religious affiliations, even intimate pictures.

"People carry their entire lives on cellphones" — Justice Elena Kagan

"What's at issue is whether or not the police in every arrest, no matter how minor the offense, and no matter whether they have any reason to think they have to look right away, can do a full exploratory search of someone's digital device," said Jeffrey Fisher of Stanford University Law School.

He represents David Leon Riley, who was pulled over in San Diego five years ago for driving with an expired license. When police found guns in his car, they arrested him for carrying concealed weapons.

Police then discovered pictures and videos on his Samsung phone, which led to charges that he took part in violent gang-related crimes. His conviction was upheld.

But Deputy Solicitor General Michael Dreeben, representing the Justice Department, told the court that police have "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," he said. "And it allows the discovery of evidence that's relevant to the crime of arrest to enable prosecution."

More than 90 percent of American adults own a cellphone, and 58 percent have a smartphone.

More than 12 million people are arrested in the U.S. each year, most of them for minor offenses, such as drunk driving or getting in fights. Police also have authority to make arrests for fine-only infractions like driving without a seat belt, littering or jaywalking.

The courts have long held that police can, without a warrant, search anything they find on people they arrest, like purses or wallets.

"What is the difference," asked Justice Samuel Alito, "between looking at hard-copy photos in a billfold and looking at photos in the memory of a cellphone?"

But there's a big difference, said Justice Sonia Sotomayor.

"A billfold of photographs is anywhere from one to five generally, and not much more," she said. "But now we're talking about potentially thousands, because with digital cameras, people take endless photos."

Justice Elena Kagan expressed the same concern: "People carry their entire lives on cellphones."