your argument first this morning in case thirteen one thirty two rival versus california mr chief justice to me a please the court this case involves applying the core protection of the fourth amendment to a new factual circumstance it has always been the case that occasion of arrest did not give the police officers authority to search through the private uro's and cabinets of somebodies house and that protection should not evaporate more than two hundred years after the founding because we have the technological development of smart phones that have resulted in people carrying that information in their pockets just just to test the principle for why the police can search and seize some some objects consider the gun the arrestee has a gun on his person and the police take the gun is part of the reason for that seizure to obtain evidence of the crime were his it just for the safety of the officer and the safety of the community but with this court said in robinson a page to thirty five is the shells were left in the chamber they obviously have to empty it for safety purposes or for the purpose of building the case of of obtaining evidence yes of course that's done every day once the gun is in the police off the police department's lawful possession i think edward says that they can do all that it's so so if the proposition and if the principle then is that some objects that are obtained from the arrestee can be examined in order to build the state's case is that at least the beginning premise that we can accept in your case although obviously there are problems of the extent and intrusiveness of the search that are in your case but not in the gun hypothetical well justice kennedy the court has never described bad as one of the things if you want to think about this case where you thought about the automobile searching gant it would be a beginning premise but i think you're right that even if that beginning premise it would be only bad to get it in footnote nine edwards this court said that any search incident to reskill has to satisfy the fourth amendment in general general reasonable and i think you're right that the gant is probably the best statement  in support of the principle that i suggested and then you might say well that's limited automobile right and then we're back where we started right and there's important things to understand if you want to start thinking about again because both in terms of its history and it modern application it's dramatically different from what we have here a mr fyshe before we do that have you been accurate in what you said about robinson and about the court's cases in weeks which was quoted in rob the court said the right always recognized under english and american law to search the person of the accused when legally arrested to discover and seize the fruits or evidence talks about tools and instrumentalities now i don't think we have to debate that here because even if we're in a world where the police can seize some evidence and keep it and use it for the prosecution simply for that reason even if they don't fear destruction they're still very very profound problems with searching a smartphone without a warrant because even under the robinson rule this court is recognised for example when it comes to blood draws search something like a strip search that might occur at the scene there are limits even to the robinson rule smartphones to present difficult problems let me ask you this suppose your client were an old school guy and he didn't have he didn't 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 that's the rule of robinson that any physical item on an arrestee can be seized and inspected and then used as evidence if it's useful evidence so we're all online what is the difference between looking at hard copy photos in a bill fold and looking at photos that are saved in the memo 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 aren't present with digital evidence what is more once you get into the digital world you have the flamers concern of general warrants and the roots of the system that spider how does that apply to these hard copy photos in the bill fold that they don't present a threat to anybody and i don't see that there's much of a difference between the government argues there's a greater risk of the destruction of digital at the dance and a cell phone and then the reason the photos so i don't quite understand how how that applies to that situation well 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 contain 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 arrest the police don't have to distinguish physical items one from the op well but but but it in the wallet stick with justice alito is hypothetical they find a business card or something which show the car rental service of the can they turn the card over and read it they're not looking for a pin or explosive they're trying to read with on the card can they do that i think they can and if nothing else under plain view once and once it's in their hand just as kennedy but i really don't want to know they turned the card over i think that is fine under the categorical rule i think what you have in robinson is a categorical rule that obviates these exact difficult case by case determinations you could make an argument  i needed to if it were a diary case for a billfold case you might be able to make an argument but i think the court wisely decided under robinson that we need a categorical rule that's easily administer but in the field now when you have digital evidence to categorically rule we submit cuts exactly the opposite direction because digital information even the notion of flipping through photos on a smartphone implicates vast amounts of information not just the photos themselves but the g p s p p s locational dad it's linked in with it all kinds of other information that is intrinsically intertwined in smartphones including information that is specifically designed to be made public i mean what about something like facebook or a twitter account there's no real there's no the privacy interest in the facebook account is at least diminished because the point is you want these things to be public and seen widely well mr chief justice i just my question would be could you have a rule that the police are entitled to search those apps that in fact don't have an air of privacy about them i think that would be extraordinarily difficult to administer that rule let me tell you why because most of the information on smartphones is private much of it is just like the photos in this case just kept on somebody's phone and not shared with anybody even a facebook account is a limited universe of people who have access to it you're right that's one of the less limited i mean you know maybe it's twenty people maybe it's a hundred people but it's certainly not private in the sense that many of the other applications are i think it's fair to say you have a sliding scale and there are some stuff on a phone that might be posted on the internet for example the difficulty with that case if you want to address it in the future case would be the twine nature of information on a phone so looking at those photos in a smart phone account will be linked to the contacts inside the phone it will be linked to g p s information inside the phone all of this information is intertwined i think you'd have a difficult minister billet problem if you wanted to create some sort of rule like that now remember the government might try to deal with that problem differently by saying information in the cloud so to speak is not accessible to officers we submit that just further would compound the difficulty of applying a rule in the circumstance you think in this case we have to decide whether all the information that may be available in a smartphone can be examined by the police when the owner of the phone is arrested or or can we just focus on the particular evidence that was admitted it in your client trial well the way you phrased the question i think that's what that's the first cut at this is looking at particular pieces of evidence here which are photos and videos but we don't think you can write an opinion that would is question this court has said time and again that the mere fact that police could have gotten a warrant but didn't does not excuse a fourth amendment violation let me say a couple things about the work requirement then return to justice alito the well the but it just goes to the fact that the this is searchable under fourth amendment standards with the warrant justice kennedy and let me talk about why a warrant is so important first of all it interposes a neutral observer in between the citizen and the police officer perhaps more importantly it does tooth fairy big things one is it can trigger the fourth amendment particularity requirement so that the magistrate can say this is what you can look at and what didn't remember in this case the prosecution alternately introduce photos and videos but that's example of a warrant in a footnote in our reply brief i believe it's footnote three justice ginsburg and there are many more available on the web from states that already require warrants what they do is they say the police officer testifies perhaps  testified here at the suppression hearing i suspected this fellow was in a gang and i said i believe gang members keep certain kinds of things on their phone this is the kind of crime that we're investigating and therefore these particular files within the phone are likely to obtain evidence and agreed it's not going to be perfect and so let's look at what happens all over the world on the same lines as is justice scalia the point you make elsewhere in your brief an argument is that the cellphone or the smartphone has everything it's got the person's whole life well if you're arresting somebody on the grounds of suspicion that he's a gang member and you have evidence to support that what part of the smartphone is not likely to have pertinent evidence one application is not i mean here you've got pictures you've got good news you've got called into his account well and that's going to coincide with the particular drug deal mr chief justice week they get those arguments can be a made on an app by app basis but what happens is this is the benefit of our rule as opposed to the government's what the government says is let the officer look and then have a back and hearing where you just suppress all the stuff that he wasn't supposed to look at once you apply particularities requirements under all rule once the officer has the warrant leon kicks in and so you don't have to have all these hearings in district courts because once an officer does a proper search according to the corners of a warrant you don't have to have that kind of suppression hearing and there's one other very important thing that goes into a warrant which made might have been glossed over too quickly in the briefs it's not just what can be looked at it's how it can be kept and the pretension of information raises extraordinary fourth amendment concerns minder standing in california is at least for some crimes it's not just if they're downloading the information and looking at it for the crime of arrest but they're keeping th information in databases ever growing databases of every cell phone that they've ever seen have a device that doesn't have the broad information that a smartphone has but only a very limited like a bit it tells you how many steps you've taken the defendant says i've been in my house all afternoon and they want to check and see if he's walked four miles in it's not his whole life which is a great part of your objection is that something they can look at i think probably not and i think this is the way the categor it sweeps in the kind of hypotheticals we were talking about in one direction i think a categorical rule in the other were direction for digital information would sweep in the fifth bit i mean obviously i don't have to win that argument today but i think that's how you would approach that question remember the fifth bit and this is true even more so of smartphones tells you just the kind of information the court was very concerned about in cairo it tells you modern smartphones work the inside of people's house they work the appliances and  be a different case but i think you may want it that will be part of your conversation in the next case perhaps i think the easiest way to decide the case right now in two thousand and fourteen is simply say digital evidence kept on modern cell e i think that might be the same kind of cases you have now remember the the phone in this case had a removable memory card as many still do which by the way we were going to talk about the destruction of evidence that's one answer to the structure of evidence problem it couldn't possibly have a reason with respect to the evidence at issue because it was on a removable memory card that couldn't be erased remotely or password protected now we've given lots of arguments in the brief that explain why the government's arguments as to why ping simply don't stand up mr were you there nearly a question you didn't finish the answer you were so describe in the difference between the downloading by police and databases that they keep forever what happens with materials that are returned pursuant to a search warrant but they precluded from doing that no i wasn't sure i understood your right so i take it that the ordinary rule is if the police lawfully seize evidence in the physical world if it's if it's a physical item it might at some point have to be returned to the owner of it but if it's something that can be made a photocopy of or a photo you know remains in police files it's lawfully obtained information they can use indefinitely into the future you have real problems however when you apply that typical rule to digital information because now again what i understand the government itself and the federal government in footnote three of its reply brief and worry acknowledges that it's keeping in a ever growing federal database at least some of the information seized from smartphones i'm sorry i don't know the truth i'm sorry she didn't understand which can they do the same thing once  wanted to say oh no well not necessarily because the beauty of a search warrant is it can delineate retention rules it can say here's the here's how long you're allowed to keep the information here's who's allowed to look at it who's not and it can frankly i have to tell you i don't ever remember a prosecutor coming to me with that kind of delineation well i think that just is sort of my word that is what is starting to happen in the digital world because we just have new and different sees would allow it first of all the two officer safety arguments the other side makes about a hypothetical bomb or a confederate ambush as it's called already recognizing chadwick would give exigent circumstances the concern about remote wiping we think as the experts have described in the amicus brief filed by epic and many others we don't think would ever arise give rise to a situation where that was a legitimate concern but you know very odd world yes i don't understand your first circumstances when there is a bomb but you can't you don't know what that there is a bomb till you look in the full whether whether his associates are on the way to you know to kill the officer and and release their confederate and circumstances might indicate there's a hypothetical i believe it's on page one of the amicus brief filed by the state investigative agencies and i think it's a classic textbook example of how existing circumstances might apply it seems to me it would almost never never be able to say you know surrounding circumstances give me reason to suspect that there's a bomb in the phone no i think the reason to suspect that his confederates are on the way i think you're right that that's going to be an extraordinary rare circumstance all i'm standard which limits the extent of the search and that's one of that's one of the problems in this case if if say we rule for the government and it's a case maybe it's not quite fair to ask you but if we if we rule for the government  your favorite maybe that's not quite a fair question you're not you're not answering you're not arguing the guy's government's case i don't want to tread on the both lawyers in that case but certainly in my case we have an exploratory search we're not even the state has contended the amount of information looked at is equivalent to what somebody could have carried around in the old days you know say something i'm going to say something first ok if if if if the if the phone rings can the police answer there are cases on that mr chief justice obviously this court hasn't addressed them all the cases we've found are cases where the police already had a warrant in hand and they've been held that yes the police officers can answer the phone in that circumstance unquestionably the police officers could look  area now certainly you could look at the caller id coming through because that would be in plain view but if i can return to justice kennedy's question about the diary because there's a couple of important aspects to that that i hope to be able to draw out the reason i think that you don't find diary cases when you look for them it's because people hardly ever carry a diary outside the home with them it was kept in the private drawer in the bedroom or wherever it might be kept and the highly highly unusual circumstance  somebody did you might have a hard case this isn't in this is the opposite world the modern reality of smartphones is it is an indispensable item and for every day life of a modern professional and indeed most anyone you can't leave the house without it and be consider yourself to be responsible and safe and so you take a moment to take the world where the police might try to say we can get the stray diary because of the importance of a categorical rule under robinson and try to apply that into a world where everybody has everything with them and all of time to live including the criminals who are more dangerous more sophisticated more do more allusive with cell phones that's the that's the that's the other side of this well this is going to be good the first amendment has  balance already built in in that respect we're not saying they can't look at digital information we're just saying that when they seize it they can freeze the contents and then go get a warrant and search what they're allowed to search and keep it under the rules of that w this case that the information was not protected by a password no i don't think he entered and i doesn't affect the expectation of privacy if the other side were making an argument that this wasn't even a search then i think that might be an argument they would deploy but i think i don't want to speak for the government but i think that they also agree that has for protection doesn't matter and it certainly doesn't matter under their argument as to what information they get i mean their position is if we seize a corporate executives smartphone at the scene that  in protected under password if we can get that information out back in our lab we get it all and we don't have to ask for a warrant and we can keep it as long as i know they argue that it doesn't matter but i'm just wondering if you think if your position is weakened by fact that the individual did not seek the greater protection of the password no i don't think so people don't lock their homes they don't lock their briefcases simply having it inside the smartphone protected on the person is enough to trigger the fourth amendment i think to sustain the arguments  advanced if i could reserve the rest of my time thank you counsel could have looked at those photographs to see whether they contain evidence of crime now what would a reasonable in that situation does not become cus it's usually under reasonable simply because mr riley instead carried his photographs in digital form noted many of our rules were based on practical considerations practically speaking a person can only carry so much on their person that is different because carrying a billfold of photographs is a billfold a photograph since you know anywhere from one to five generally not much more but now we're talking about potentially thousands of this with digital cameras people take endless photos and it stands their entire life you don't see a difference between the two things well what it has been now become impractical  d the police could take that phone and could look at every single in mail that person has written including work e mails including e mails to family members very intimate communications could look at all that person's bank records could look at all that person's medical data could look at that person's calendar could look at that person's g p s and find out every place that person had been recently because that person was arrested for driving without a seatbelt now that strikes me as a very different kind of world than the kind of world that you would describe in which somebody has pictures of their family in a billfold doesn't it strike you that way i think very severe one can always a cell phone people carry their entire lives on cell phones that's not a marginal case that's the world we live in isn't that we hear that repeated the facts of this case are not some of these entire life on a cellphone this cell phone had a handful of and that opens the world it is true that the court typically improperly in this area draws categorical lines and that is what the court said in robinson is doing now it also is true the court has repeatedly said that those lines are drawn based on the generality of most people now do carry their lives on cell phones and that will only grow every single year as you know young people take over the world i mean that's not a martian a place that's what their computer is they have as much computing capacity is as laptops did five years ago and and everybody under a certain age let's say under forty has everything on them i think you need to look at the generality of cases and in the generality of cases first of all you will not be dealing with minor crimes you'll be dealing with serious crimes and second you'll be dealing with police who are they going to do their job either what are you saying we're just resting on the discretion of the officer so there's th  well let's leave let's leave it exited circumstances out of it that that's the case you're not arguing for exiting circumstances here i would i'd say that to go back to justice scalia's point our argument is that the same things that mr fisher concedes say interest in mr fisher i think concedes justify this the search of the person and the seizure of the phone which are the biggest in circumstances type arguments and their words they have a need to protect officer safety and the need to preserve evidence and the st it starts with a speeding ticket and off the highway late at night it develops that you know maybe there's more going on the person wants to be under the influence he's taken out of the car than it looks like there might be a gun the officer looks at the cell phone the first thing he sees when he turns the phone on is a picture of what appears to be the driver standing with two assault rifles arms akimbo like that's posing with his assault rifles now i would say that that changes the situational awareness of the officer in that situation and provides valuable information that was necessary at the time and could not have been gotten in the way here at the station house what does that have to do with my my question about a bomb it's really saying it has to do with safety so no i can't play to a case in a car at their desk if they're rested at their desk anywhere if they're carrying it in their hand because you see a lot of people carrying the the i pad or something comparable a tablet of some sort your theory would permit a search of all of those things are curious in their objects that are on the person or immediately associated with for instance in a purse it doesn't necessarily extent is the owners that are sitting nearby the court has drawn a clear line there it's me go back to this volume question because there are two things about a cell phone that might justify some sort of special rule there's the volume question and then there's the connectivity and networking question now as to the volume question first of all we don't really have it here but i can see that we could have another cases and what they seem to be really concerned about is the idea that if you have enough information and enough different kinds on this device and the police spent enough time working that they could build the kind of you know remarkable portrait that some of the just possibilities possibility one smartphone no you know warrant unless a decision circumstances possibility two yes it's just like a piece of paper that you find in his pocket or possibility three sometimes just sometimes not right which of those three years yours are possible position is that the core information like this that is contacts for you know my three choices question is please tell me what your in between rule is right and it in my image will roll with the explanation is that for information that is of the same sort that police have always been able to seize from the person that include goes to question of how sensitive is this information that we're being told is now routinely state your rule is sometimes so i say sometimes what size and you say interests the kind of thing that the police could have searched for if it wasn't on the computer then they can search for it on the computer now since they can search for everything in your pockets before when it isn't the computer then why isn't yours everything i mean by the way they don't know where the recall is or is not going to turn out to be evidence when it's in your trash box if that's her or wherever you put it i don't know they don't know that till they read it so i guess what you're saying is i thought it was category two sometimes but really it's category three always now why am i wrong if the police are looking for have a legitimate best stated purpose for looking at the information on the phone to see whether there is evidence of the crime of arrest or the other it seems to us that they should at a minimum be able to look at the same kind of information they could have looked at  other previous context i just bought the contacts the photos but that's not just the concession on your part isn't it because these smartphones carry a lot of information that would not have been the sort of thing police could look up at before g p s tracking information the police could never have gotten that before so you're saying that is protected not saying it's protected i'm saying that there is a different set of issues it seems to me that in order to try to do some answer to justice concerned that maybe the distinction ought to be between serious and non serious offenses offenses i don't think that exists in our jurisprudence correct me if i'm room i think that's correct the court has previously declined to draw that line now information that showed where you had been and where you were going as long as it was on paper now it's in a g p s so how does your rule help the g p s would see if you didn't fact turn right at the thing or it gone somewhere else again we can conceive of situations in which the amount of information in the kind of search would lead to a qualitatively different result we think you had and you could amend your answer and the answers are for you not for us but you could amend your answer is say not just anything that somebody could have had a person could have had a diary that records every place the person has ever gone in the last year the theoretically possible but you could say something that has a realistic analogue in the pre digital era we have as a somewhere a problem here that similar to the problem in the jones g p s case you have a rule of law that was established in the pre digital era now you have to apply it in the digital era are you're asked to apply it in the digital era where the technology changes a lot of things but if there is a close analogue in the digital era to something that would have been allowed in the pretty digital era i may be a different story we certainly think that's right and we think that that covers you know the information that was issued here the photographs the short videos it certainly covers address information contact information but if you're not willing  not willing to limit your position to searches that either you are in order to protect the officer or in order to preserve evidence or number three in order to find evidence of the crime of arrest you're not willing to limit it that way he would say whatever's on the person you can you can you can search we think every available in the us that is by far the search that person's i phone and you will you can avoid that if you if you say look in the vast majority of cases this is not going to be a problem unless the officer can reasonably be looking for evidence of the crime of arrest that with photos the arrested person has photos prove the digital age of course you can look at them on the phone there are folk hugs absolutely analogous except there are ten thousand in cindy his entire life history and photos on your rule can the policeman look at the photos by analogue or not because there are ten thousand ok what c n c in theory yes  walk in practice i will we have is by the way you understand where i'm going i think you are very very few things that you cannot find an analog to in pre digital age searches and the he or she has chosen to carry on the person now modern technology makes it possible for people to choose to carry a great deal of information but that doesn't change the fact that the reasonable expectation if a person is subject in anything that the person actually once to keep on them at all times in other words one has to keep one cell phone at home to have an expectation of privacy and that no we're not saying that at all that what we are saying is that people do make choices and those choices have consequences and the consequence of carrying thing on your person has always been that if you are arrested the police will be able to examine it to see if it is evidence of crime thank you  understand why there is a categorical robinson rule and how cell phones implicate many of those concerns the categorical robinson rule responded to the fact that when a person is carrying something on their person and they are subject to a legitimate probable cause arrest their expectations of privacy are considerably reduced not eliminated but considerably reduced and the government on the other hand has several very compelling interests at the moment  by conducting a thorough search of the person and the things he hands it avoids the destruction of evidence it protects officer safety and it allows the discovery of evidence that's relevant to the crime of arrest to enable prosecution  they could throw it in the back of the patrol car in the trunk and it would be safe and they could go get a warrant but the balance has always been struck at the moment of the arrest to allow the officers to fulfill the compelling interests in the matters that i've previously described the second and i think very critical thing about cell phones is they do differ in the amount of information that that person can carry on them and the amount of revelation about a person's life that is true they also differ in that they greatly facilitate criminal activity they contain a great deal of evidence and most critically they are subject to destruction in a way that ordinary physical items are not even if an officer has a cell phone in his hand he cannot guarantee unless it's disconnected from the network or somehow protected from the network that there won't be a remote white signal sent to the phone that will wipe its data of cases we're going to and i have anecdotal reports from the f b i that that has happened that they have looked into the question of to what extent can you protect a phone through the use of things like farraday bands i think one of the important things to note is if you throw a phone into a farraday bad which is supposedly going to be able to block network signals when you open it it has to be similarly shielded or it will pick up a signal from a cell tower and that will wipe the phone and the f b i tried to build a ferret a room in a building that they later discovered verizon had put up a cell tower on it and that cell tower you're saying now we should allow searches of all cell phones because there might be a technology that hasn't yet in fact been used in any of the states that have this rule that sounds a little hypothetical i'm not quite sure how to handle it but i think that is that there is clearly the technology available and growing technology to wipe funds remotely but the other critical problem that comes back to justice ginsburg point about getting a warrant is encrypted technology is increasingly being deployed in cellphones that is something that clearly is on the rise and when a phone is turned off or a law kicks in and the phone encrypt it can be almost impossible to get into all about putting let me st because you were making that argument if you prefer three related questions ok why can't you just put the phone on an airplane you can answer that one for us first of all it is not always possible to find airplane mode on all the five hundred six hundred models of phones that are out there the officer has a lot of things to do when he addressed suspects say he arrests five suspects in a car and they each have three cell phones trying to find and put each one of them into airplane mode and then to get the if you do it at the scene that that's certainly true i think even a discreet put it on the airplane even if you bring it back i think the assumption that we're going to have airplane mode at the core should craft a constitutional rule around airplane mode assumes that cell phones are not going to be able to be used in airplanes in the next five years and that manufacturers will continue to make an easily available button for airplane mode i don't think the court should found a constitutional ruling on i said i don't disagree with you but you're asking us for a constitutional principle based on technology that might or might not do something in one or more cases but not in the general i think what i'm trying to suggest a sort of mars the traditional justifications for search and central rast include the potential for destruction of evidence that is very would you do under the robinson rule with an attorney's briefcase the attorney's brief case may present particularized problems because of attorney client that present the exact problem that every cell phone  unlocked and look at its contents they can't just go through the contents for current interest they can look however for evidence that's well up into criminal activity and they do that in a way that is minimally invasive of privacy they're not just doing it for the looking for a rule that limits the ability of police to search cell phones because cell phones are different from paper items in some respects but not all that the most reasonable rule to apply would be one that says when there is reason to believe that there is evidence of the crime of arrest on the phone the officers can look for that when there is not they can't that will not ask you a question about that mr treatment because given  riot things that the cell phones have been them it seems as though that's you know it sounds good it's a limit in principle but it ends up you can imagine in every case that the police could really look at everything so i'll give you an example sort of like this case somebody is arrested for a gun crime and now we're going to look at all the various things that might be related to a gun crime so whether he's bought guns when they're you know what whether he's done searches for gun stores his e mails might say something about gun possession or a gun purchase he might have photographs of him with a gun you know the whole range of things could relate to that crime wouldn't it justice kagan i would argue knowledge that your reasoning is correct in certain circumstances and for certain crimes it would not be the case for a jaywalking crime or a bar fight or many other of the minor crimes violations that are positive on the other side of the equation for respondents are petitioners now or approach to cell phone searches but i do think that a couple of things are worth thinking about first in a serious offense like a firearms offense in this case a drug offense in warre if the police went and got a warrant they would be looking at all the same things because the only way to execute the warrant on the phone would be to engage in at least a cursory search of everything on the phone to see whether we're related or they would be looking at the same thing but the whole idea of a warrant is that a neutral magistrate tells you that you can look at those things and has an opportunity to limit it in whatever way the neutral magistrate feels is appropriate to protection i'm not sure that i would go start with the basic bedrock of robinson is that there is a different balance there is a different balance at the moment of the arrest at that moment society's interests are at their apogee in locating evidence relating to the crime of a and apprehending related suspects and the suspect has a highly reduced privacy interest thank you so formats mr fisher thank you i think i heard about four or five different proposed rules that i want to just go through each of them one at a time first the state talked about a quote fundamentally different rule and i think the justices have already figured out what we said page seventeen eighteen of our reply brief which is that it's we've been virtually everything on the phone to the extent it wouldn't you have a really difficult struggle on a case by case basis to answer the very difficult question whether any particular app had fundamentally different information and existed in the digital world i also suggestion that well if a laptop or a smartphone is on somebody's person that's different than if it's sitting next to them that's not correct if what the government says about it's about passwords and wiping satisf shemale gives authority to search and seize without a warrant anything in the grab area if there is a destruction argument so the person who's arrested sitting at his desk at the office in a red and reaching area from his computer would be open to a full search under the cover and school there was also i'm just sick discussion about the exit sees at the scene of an arrest needing to prevent a remote why preventing a password from kicking in the first thing to make sure you understand is those arguments can apply only at the scene they want to play in this case one officer takes the phone back to the police station and two hours later searches through it at his leisure so all the arguments about at the scene and what the officer need to be able to do at the scene can be left for another case and i think justice briar's exactly right at the very best what the government has shown is that there may be certain tightly limited circumstances where extant circumstances would apply and i want to say just a quick thing  the password question in particular which we didn't talk about that may come up in the next argument pages twelve to fourteen of our reply brief we outlined how highly unusual as a factual matter it would be for a smartphone to be seized a while it's still unlocked and for an officer not to be able to address a concern at the scene that might block later and it's also worth noting that in a footnote we attached the government is arguing in lower courts that even if it does lock that the fifth amendment does not give the person the opportunity to refuse to divulge the password in response to a warrant so the password argument doesn't have any play if the government wins the argument it's making in the lower courts justice kennedy you suggested the possibility of distinguishing between serious and non serious offenses i think with couple times the gant principle as applied to this case evidence that you think you might find on the phone was too profound problems with that the first is the court recognizing pile o you need to be sure to protect the amount of privacy people had at the found and as i said in my opening the fact that so but he might incidentally have an item on his person even in a rare case diary or address book are leagues away from the kind of information people have now that were stored in the home and that were sacrosanct and arrest and that's what the thread throughout history says it arrest cannot be an occasion to do that kind of a search and justice kagan you're exactly right if you run the gantt test through the world of crimes the government might be able to admit identified a crime here or there that would be difficult to make an argument about but lots of minor crimes like speeding as we point out in our brief dui littering all kinds of minor crimes the person could make a fairly convincing argument sometimes that evidence on the phone would be relevant to that crime of arrest and so i think that brings me where i want to end which is understanding what the rule of the government propounds would do in terms of just ordinary police work remember this case starts with a traffic stop for inspired license plate it is every day police work the traffic stops are the beginning of criminal investigations in a leverage point into searches if you adopt a rule that says even again a rule that says if you can make an argument that evidence on the phone would be relevant to the crime of arrest take this is spend of license you may have an e mail from the d m v telling you you better come in and renew if that opens up every americans entire life to the police department not just at the scene but later at the station house and downloaded into their computer forever i think you will fundamentally have changed the nature of privacy that americans fought for and at the founding of the republican that we've enjoyed ever since thank you council t