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"FORTUNE &amp;#8212; Say you\u2019re arrested for possessing a marijuana cigarette in a state where that\u2019s still illegal. Can the arresting officer, without a warrant, riffle through your Apple (AAPL) iPhone or\u00A0Google (GOOG) Android\u00A0with impunity, inspecting, say, 16 gigabytes worth of emails, text messages, contacts, calendars, photos, videos, and GPS records of your comings-and-goings?\nThat\u2019s the bottom-line question permeating two cases being heard by the U.S. Supreme Court on Tuesday &amp;#8212; one involving the\u00A0prosecution of a California man for a gang-related shooting and the other, a federal case against a Boston man for selling crack cocaine.\nSince 2011, the California Supreme Court has greenlighted broad warrantless cellphone searches \u201Cincident to an arrest,\u201D while a split panel of the U.S. Court of Appeals for the First Circuit &amp;#8212; which hears federal cases from Maine, Massachusetts, Puerto Rico, and Rhode Island &amp;#8212;\u00A0categorically forbade such searches last May. The Court will apparently be resolving this\u00A0conflict before its current\u00A0term ends in late June.\nSince the country\u2019s founding, an arresting officer has traditionally been permitted to search and inspect, without a warrant, anything found on the arrestee\u2019s person, even if that meant opening closed envelopes and containers, and flipping through the accused&amp;#8217;s notebooks, datebooks or wallets &amp;#8212; all containing private information that does not differ in kind from what is now stored on cellphones.\nMORE:\u00A0Pot is still a risky business for investors\nBut attorneys for the two defendants in these two cases &amp;#8212; backed by numerous constitutional and civil liberties groups, ranging from the progressive American Civil Liberties Union to the libertarian Cato Institute &amp;#8212; argue that the traditional rule needs to be revised in light of the massive storage capacity of modern digital devices and the extraordinary sensitivity of the private data citizens now routinely store there.\n\u201CTechnology now makes it possible for individuals to carry huge quantities of information with them every day,\u201D write Yale Law School professor Eugene Fidell and private attorney Andrew Pincus in a brief they\u2019ve co-authored by the Center for Democracy and Technology and the Electronic Frontier Foundation. \u201CPrior to the advent of digital technology, this information would have been stored in the drawers and file cabinets of people\u2019s homes,\u201D they write. \u201CLaw enforcement officers would have been required to obtain a warrant in order to search such materials.\u201D (Pincus is a partner with the Mayer Brown law firm.)\nA 16 gigabyte phone &amp;#8212; the smallest available storage capacity for the Apple iPhone 5 &amp;#8212; \u201Ccan store 800 million words of text &amp;#8212; well over a football field\u2019s length of books or sixteen flat-bed truckloads of paper,\u201D Fidell and Pincus write. (The phone also comes in 32 GB and 64 GB versions, while other manufacturers offer up to 128 GM of memory, they note.)\nMORE:\u00A0Why the\u00A0Supreme Court\u00A0might pull the plug on Aereo\nIn light of this new reality, argue Doug Kendall and Elizabeth Wydra of the Constitutional Accountability Center in their amicus brief, today&amp;#8217;s\u00A0warrantless\u00A0cellphone searches incident to arrest closely resemble the reviled \u201Cgeneral warrants\u201D and \u201Cwrits of assistance\u201D that British authorities carried out\u00A0during colonial times &amp;#8212; the precise evil the Framers of the Constitution sought to bar by enacting the Fourth Amendment. \u201CThese warrants and writs lacked any specificity about the people or items to be searched and were not predicated on any individualized suspicion,\u201D they write. To prevent such searches, the Fourth Amendment explicitly \u201Crequired not only that all searches be reasonable, but also that all warrants \u2018particularly describ[e] the place to be searched, and the persons or things to be seized.\u2019\u201D\n(The Fourth Amendment reads: \u201CThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.\u201D)\nBut law enforcement authorities urge preservation of the traditional rule, which gives arresting officers an unqualified right to inspect items found on the arrestee\u2019s person. This historical rule \u201Crests primarily on the \u2018reduced expectations of privacy caused by the arrest,\u2019\u201D according to U.S. Solicitor General Donald Verrilli, Jr. &amp;#8212; who represents the interests of the United States as a party in the federal case, United States v. Wurie, and as a so-called friend-of-the-court in the California case, Riley v. California.\nMORE:\u00A0To kill bias suits, companies lean on the First Amendment\n\u201CThe traditional rule also comports with the realities of police work,\u201D Verrilli argues, \u201Cin which officers cannot reasonably be expected to undertake an item-by-item legal analysis during arrests &amp;#8230;\u00A0In today\u2019s world, cell phones are particularly likely to contain evidence of unlawful activity and to help law-enforcement officers identify suspects they have apprehended.\u201D\n\u201CAnd unlike other containers,\u201D Verrilli continues, \u201Ctheir contents can be destroyed or concealed after the suspect is taken into custody, making it impossible or impracticable for the police ever to retrieve critical evidence.\u201D Here he is referring in part to the threat that a confederate of the arrested individual could use \u201Cremote wiping\u201D technologies &amp;#8212; designed for people whose phones are stolen\u00A0&amp;#8212;\u00A0to destroy incriminating data saved on the phone.\nAt a more basic level, an immediate search may simply be the officer\u2019s only opportunity to circumvent password protections, Verrilli argues. \u201CWhen an officer finds an unlocked cell phone at the scene of an arrest, searching it immediately may be her only chance to retrieve and preserve essential evidence,\u201D he writes. \u201C[The defendants\u2019] proposed solutions to that serious problem &amp;#8212; such as equipping every officer with unwieldy forensic devices that cost several thousand dollars each &amp;#8212; are entirely unrealistic.\u201D\nMORE:\u00A0Will Johnnie Walker&amp;#8217;s new label be scotched?\nIn the California case, David Riley was pulled over in San Diego\u00A0in August 2009 for expired license plate tags. When the arresting officer discovered that Riley\u2019s license was suspended, he started to impound the car, requiring\u00A0him to inventory its contents. In the course of doing that, he found two guns strapped under the hood. He then placed Riley under arrest for possessing concealed weapons.\nWhile conducting a search incident to the arrest, the officer took a cellphone, a Samsung SPH-M800 Instinct, from Riley\u2019s pants pocket. Without a warrant he began scrolling through Riley\u2019s contacts and text messages. He saw that words and names that would ordinarily start with a \u201CK\u201D were spelled with a \u201CCK,\u201D which he recognized as a possible\u00A0gang-related reference to \u201CCrip Killers,\u201D i.e., \u201CBloods.\u201D\nTwo hours later, during a second warrantless search of the phone at the police station, a second officer found more gang-related evidence, including stills of Riley and others making gang related hand signals, and videos of \u201Cstreet boxing\u201D &amp;#8212; a gang initiation rite &amp;#8212; at which Riley could be heard saying things like, \u201CGet him, Blood.\u201D More important, there were photos of Riley and two associates with a red Oldsmobile in the background, a car believed to have served as a getaway car to a gang-related shooting two weeks earlier. Ballistics tests on the guns found under Riley\u2019s hood later linked\u00A0them to the shooting. Riley was charged with, and convicted of, attempted murder, and the fact the shooting had allegedly further gang-related activity &amp;#8212; as proven by videos and stills found on\u00A0his cellphone &amp;#8212; was used to enhance his sentence from a seven-year maximum to a mandatory minimum term of 15 years to life.\nMORE:\u00A0&amp;#8216;Patents are good!&amp;#8217; say seven big companies\nThe federal case, concerning\u00A0the September 2007 arrest of Brima Wurie, involved a more limited search of a\u00A0phone, which is identified in the record only as a \u201CVerizon LG.\u201D Wurie was arrested after he was observed apparently selling drugs out of his car. Using clues obtained from a search of Wurie\u2019s phone &amp;#8212; mainly the fact that his phone log showed frequent calls from a number labeled \u201Cmy house,\u201D together with a photo of Wurie\u2019s companion, which served as his phone\u2019s screen \u201Cwallpaper\u201D &amp;#8212; the officers tracked down Wurie\u2019s residence, which he had otherwise refused to reveal to the officers. After getting a search warrant for that residence, officers seized crack cocaine, cash, a firearm, and ammunition.\nCellphones are the only devices directly involved in the two cases being argued Tuesday, and since the arrests occurred back in 2007 and 2009, the phones are not particularly advanced compared to what are prevalent today.\nNevertheless, all parties recognize\u00A0that the cases will shed light on seizures of any device that can be found on someone\u2019s person, including tablets, laptops, thumbdrives, and, in the future, Google Glass, say, a smartwatch, or any other wearable computer device.\nAlthough law enforcement would understandably like to keep the historical rule inviolate, the advance of technology seems to have rendered that option untenable."^^<http://www.w3.org/2001/XMLSchema#string>
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