But let me ask you this suppose your client were an Old School Guy and he didnt have he didnt 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. Thats the rule of robinson, that any physical item itemon a arrestee can be seized and inspected and then used as evidence if its 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 arent 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 dont present a threat to anybody. And i dont see that theres much of a difference between the government argues theres a greater risk of the destruction of digital evidence in a cell phone than than there is in the photos. So i dont 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 dont have to distinguish physical items one from the other. Well, but the but in the wallet well just stick with Justice Alitos hypothetical they find a Business Card or something which shows a Car Rental Service can they turn the theyre not looking for a pin or an explosive. The can they do that . I think they can, if nothing else, under plain view once its kennedy. But i really dont 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 thats linked in with it, all kinds of other information that is intrinsically intertwined in smartphones. Like facebook or a twitter account . Theres no real theres 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, dont 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 somebodys phone and not shared with anybody. Even a facebook account is a limited universe of people who have access to it. Youre right that i mean, you know, maybe its people; maybe its a hundred people. But its certainly not private in the sense that many of the other applications are. Think its fair to say you have a sliding scale and theres 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 didnt doesnt 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 didnt. 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. Lets 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 cant. You told us that is hard to figure out what you can and what you cant. 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 isnt going to be perfect. So lets look at what happens on the same lines, the point you make else where is the cellphone or smartpone has the persons whole life. What part of the smartphone isnt likely to have evidence . Pictures, videos, and calls i guess it is similar to what other issues. I dont know what a magistrate puts in the warrant . I would say his banking app. You dont 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 wasnt supposed to look at. Under our rule, once the officer has the warrant, leon kicks in and you dont have to have hearing because once the officer does the proper search you dont have too a suppression hearing. And there is another thing in the warrant, it isnt 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 doesnt 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 peoples house and monitor inside of peoples 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 dont 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 dont 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 dont 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 dont think it would ever arise to the degree of legit concern. I dont know understand your first circumstances. When there is a bomb but you dont know till you look in the phone. Whether his associates are on the way to kill the officer. You dont 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 isnt 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 somebodys 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 dont 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 wasnt protected by a password . That doesnt effect the expectation of the priacy . If the othside was saying th wasnt is search but i think that would agree Password Protected doesnt matter. I know they argue it doesnt matter but i am wondering if your position is weakened by the fact the individual didnt seek the greater protection of a passwo password. I dont think so. There is no dispute they could look and see if they contained evidence of crime. The shift to digital format. One decision where a series of justice noted that many rules are based on practical consideration. Practically speaking a person can only carry so much on their person. That is difference because carrying a bill fold of photographs is anywhere from 15 and not much more. Now we are talking about potentially thousands. People take endless photos for digital camera and it spans their entire life. You dont see a difference between the two things . What has now become impractical. A gps can follow people in a way that prior following by Police Officers and cars didnt permit. We certainly see the possibility that there could be a constitutional difference. We dont so the facts on this case like that. And there is a constitutional difference from those fun phenomenon. The theory is the photographs are likely to be personal and private so i am not sure the expansion increases the invasion of privacy. On your argument and the principle argument, too, a person can be arrested for anything. A person can be arrested for driving without a seatbelt. And the police could take that phone and look at every single email that person has written including work emails, including emails to family members and very intimate information and could look at their calendar, their gps and find out every place they had been because that person was arrested for driving without a seatbelt. That strikes me as a different kind of world than the kind of world you are describing where somebody has pictures of a family in a bill fold. Doesnt it strike you that way . I think you can think of marginal cases where this would be of concern. I dont know why this is marginal. Your argument applies to any arrest and everything on a cellphone. People have their entire lives on cellphone. That is not a marginal case. That is the world we live in. He hear that repeatedly. The facts of this case are not entire lives on a cellphone. There were a handful of contacts. 250 contacts, 59 photos and there were perhaps 42 videos that range from 45 seconds. But the rule is for this category of case and this is, as pointed out, is taking on offense like failing to buckle up and driving under the influence, not gang crimes which is what we have in this case, it is your rule then that the cellphone is fair game no matter what the crime and no matter now unimportant the crime is. All misdemeanors and that opens the world world to the police. It is true they will draw categorical lines and that is what the court said in robinson was happening and it is said the lines are based on the generality of the case. What i am trying to suggest to you is that you call it marginal but in fact most people now do carry their lives on cellphones and that will only grow as young people take over the world. That is not a marginal case. That is what their computers they have as much computing capacity as a laptop did five years ago. And everybody under the age of 40 has everything on them. I think you need to look at the generality of cases. It will not be minor crimes, it will be serious crimes and you are dealing with police doing their job. Are you saying we are waiting on the discreation ary of the officer . We trying to draw lines applied by the officer in the field because there is not time for the warrant because they need to know the information no lets leave these circumstances out. That is an easy case. You are not arguing for that kind of circumstances here. I would say our argument is that the same things that mr. Fischer conceived, the same interest concedes the seizure of the phone and the search of the people. That is need to protect officers safety and preserve evidence. You dont know with a phone whether there is a safety concern or evidence concern. Is there any bases for the generality there is a safety concern . Do you have a case where the phone exploded or was used to trigger a device or anything like that . We dont have a specific case. A general case . Here is a case from california. It isnt sited in the briefs. There is one where there is a late night arrest starting with a speeding ticket. Off the highway late at night. It develops maybe more is going on. The person looks to be under the influence. He is taking out of the car, there might be a gun. The first thing the officer sees when he turns the cellphone on is a picture of the driver standing with two assault rifles. I would say that changes the Situational Awareness of the officer in that situation and provides valuable information that was necessary at the time and couldnt have gotten later what does that have to do with my question about the a bomb . I was saying it had to do with safety. I cannot say there was a case where they stopped and looked at a phone with bomb making. I would assume you need to operate the phone to set off the bomb. That is true but it is true of all of the objects in the prior cases. Once in robinson they secured the cigarette pack. We are talking about smartphones, which are miney computers, your theory would apply to ipads or anything sitting next to someone in a car or at their desk if arrest said in their car. If they are carrying it in your hand because you see people with a tablet in their hands. Your theory permits a search of all of those things. The court has drawn the line on that. Suppose it is in the car in a holder or suppose it is in the passenger seat. Are you saying that you dont want to express an opinion about that . You only want to talk about what is in somebodys pocket . I will say the court has drawn different rules from a that. If it is on the car seat and the person has been removed from the car, under gant, if there is evidence to think there is evidence of the crime on the phone they can search it, if not they cant. Suppose i have my laptop on my back. And if your laptop is in your backpack yes that would apply. There is the volume connection and connectivity question. We dont have the volume question here. But it could be in other cases. They seem to be concerned if you have enough information and the police spend time looking at it they could build a portrait some of the justice alluded to in jones; that it would be equalitative difference. There are differences where one was government surveillance and then this is someone choosing to cheap the information on their phone. But there is a possibility you could get to that search but it is miles away what is the rules . Three possibility one sma smartphone. No, get a warrant. Possib