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Stanford's Jeffrey Fisher

Publication Date: 
March 28, 2014
The Recorder
Scott Graham

Professor Jeffrey Fisher sat down with The Recorder's Scott Graham to discuss Riley v. CA, one of two cases going before the Supreme Court next month asking whether law enforcement can search a person's smartphone without a warrant. 

The U.S. Supreme Court will hear arguments next month on whether police may search the digital contents of arrestees' smartphones without a warrant. Stanford law professor Jeffrey Fisher will represent the defendant in Riley v. California, one of two cases presenting the issue. Fisher argues that searches incident to arrest should be limited to finding weapons or preserving evidence—and not permit rummaging through text messages, photos and videos. Fisher joined the Stanford faculty in 2006 and serves as co-director of its Supreme Court Litigation Clinic.

Q: You've analogized the warrantless search of a smartphone to the general warrant of the colonial era. Can you explain that?

A: Sure. The abuses that propelled the framers to put the Fourth Amendment in our Constitution flowed from general warrants in England and their cousin, the writs of assistance in the colonies. Both allowed governmental officers to conduct indiscriminate searches through people's entire homes or offices or warehouses, looking for any evidence of criminality they might find. Those kinds of unbounded searches through people's most private papers and effects were exactly what the Fourth Amendment was designed to prohibit.

Nowadays people effectively carry all those same private papers on an electronic device that's in their pocket or purse or what have you. We say the same system ought to apply here. When you arrest somebody in 2014, you can pat them down, remove any items that they are carrying—including their smartphone—but you cannot take the next step of searching through the digital contents of the phone without judicial authorization, based on probable cause, to search for particular evidence.