Stanford Law School’s Supreme Court Litigation Clinic Wins Landmark Fourth Amendment Case on Cellphone Searches

Jeff Fisher

The U.S. Supreme Court unanimously ruled today that police need warrants to search the cellphones of people they arrest. In a landmark Fourth Amendment case, Riley v. California, Stanford Supreme Court Litigation Clinic students and Professor Jeffrey Fisher represented David Riley, a college student currently serving a 15-to-life prison term in large part due to evidence found on his cellphone by police in a warrantless search.

A leading authority on Supreme Court practice, Fisher said that the court’s decision could transform “the nature of privacy that Americans fought for at the founding of the Republic and that we’ve enjoyed ever since.” Fisher, who has argued 23 cases before the nation’s highest court and is the co-director of the school’s Supreme Court Litigation Clinic, offers perspective now that the ruling has been handed down.

What is your reaction to the Supreme Court’s decision today?

The decision brings the Fourth Amendment into the 21st century. The core of the decision is that digital information is different. It triggers privacy concerns far more profound than ordinary physical objects. Indeed, the Court quite rightly suggests that many Americans now feel greater privacy in their smart phones than in their homes. It’s gratifying to see the Court accounting for that fundamental shift in assessing what is “reasonable” under the Fourth Amendment. Living Constitution or not, it shows the genius of the Framers’ design and the Court at its best.

What is the difference between cellphones and other personal items when it comes to warrantless searches?

Smartphones are different than ordinary physical items for three reasons: (1) they contain vastly more information, much of it highly sensitive, than any physical object could hold; (2) they increasingly contain different types of information than any physical item, such as real-time physiological information about the inside of one’s body and data and controls about the inside of one’s home; and (3) they are such an indispensable tool for modern life that one doesn’t really have a “choice” whether to carry one outside the home.

Are immediate searches of cellphones necessary to keep police officers safe?

Very rarely because digital data can’t physically threaten an officer. In the highly unusual case where an officer reasonably believes he needs to search a smartphone immediately for public safety reasons (such as a bomb threat), we agree that the officers should be able to conduct a search without a warrant.

Should cellphone searches be limited or expanded depending on whether a minor or major crime is involved?

No. The Court has made clear over and over that the rules governing arrests should not vary according to the severity of the crime–in part because officers often don’t know how serious the crime of arrest is (it might depend, for example, on what exactly is in a baggie seized from the arrestee or how much it weighs), and in part because it’s very difficult to agree on any dividing line between serious and non-serious offenses.

Why or why not should the Supreme Court be fashioning constitutional principles to reflect fast-changing technologies like cellphones?

It is appropriate for the Court to explain at least in general terms how the Fourth Amendment applies to digitized information. The Court need not delve into the minutia of the latest operating system. But it should set constitutional baselines for privacy in the digital age. If that spurs legislative action in the future, that would be fine.