At the April 2014 ABA Section of Litigation Annual Conference, the Appellate Practice Committee presented a novel program on oral advocacy. The program presented a mock argument based on a real U.S. Supreme Court case from this term, Riley v. California, where a criminal defendant had challenged the validity of a search of information and pictures found on his smartphone at the time of his valid arrest. (The actual case was argued in the Supreme Court three weeks after the committee’s program). While the committee has done a number of mock appellate arguments in the past, this program for the first time let the audience see what the participants—both the advocates and the judges—were planningbefore the argument.
Initially, the advocates spoke to the audience, without the panel of judges present, to explain what they hoped to accomplish in their argument as well as what issues were of concern. Kathleen Sullivan of Quinn Emmanuel Urquhart & Sullivan, as counsel for the petitioner, said that her theme was that, given how much information can be stored on a smartphone, its search was the digital equivalent of the Redcoats rummaging through one’s personal papers and effects—the very general search that the Fourth Amendment was written to prohibit. She noted that the framers never imagined that a person could carry around his entire library on his back rather than it being secure in his home. Fred Rowley of Munger, Tolles & Olson, arguing for the state, explained that his task was to give the Court some comfort that a smartphone search is not a general search, by focusing on the much lower expectation of privacy a person has after an arrest.
The advocates then left the room and the judges entered: Judge Harris Hartz of the Tenth Circuit, Senior Judge William Canby of the Ninth Circuit, and Chief Judge Diane Johnsen of the Arizona Court of Appeals. The moderator, the committee’s vice chair Kannon Shanmugam, first asked each judge if he or she usually had questions prepared before oral argument. Both Judges Johnsen and Hartz do (although Judge Hartz said he often never gets to the prepared questions because the argument goes in a different direction). Judge Canby, however, said he does not; he lets the argument go where it will. As to the Riley case itself, Judge Johnsen said that she was interested in the contrast between a hard-and-fast rule that the police can search anything on an arrestee’s person and the rapid development of new technology; not only smartphones but iPads and Google Glasses. Judge Canby said he wanted to ask what the boundaries of such a search are.
The advocates then returned and presented their arguments to the panel. Sullivan’s very first sentence was her analogy to the Redcoats conducting a general search. She argued that a warrant was required before the information in an arrestee’s phone could be accessed. Judge Hartz pressed her on why a warrant was required: Would not a reasonableness standard suffice, particularly because the police would almost always get a warrant, given the information likely stored on a cell phone? Judge Johnsen raised the question of imminent destruction: Might delay not allow the cell phone’s password protection to become active or allow remote destruction of data? Sullivan argued that the amount of information likely available is never a sufficient basis for search under the Fourth Amendment and that the police can, and did, copy the smartphone’s contents to avoid destruction.
Rowley began by arguing that arrest radically reduces the expectation of privacy. Judge Canby asked if there was any limit to a search incident to arrest. Rowley conceded that the police could not do a body-cavity search. Judge Hartz returned to the reasonableness issue, asking if a traffic arrest was enough. Judge Johnsen asked about the scope: Could the police search a laptop the person had in a bag over his or her shoulder? Rowley eventually said that if the court was considering a limitation on cell-phone searches, the best rule would be the rule used in searching automobiles—whether the police have a reasonable belief that evidence would be found. In rebuttal, Sullivan argued that the automobile exception should not be extended to cell phones and that here the police’s belief was not reasonable—that gang members take “selfies” is not enough to search through all the pictures on a smartphone.
Following a spirited and enlightening argument, the participants discussed how the argument had developed. Judge Hartz pointed out that both advocates had picked up on the nuances in the Supreme Court briefs and made it difficult to write a simple opinion either way. Judge Johnsen asked Rowley how quickly he decided to adopt his fallback reasonable-belief position. Rowley replied that it was clear that he was receiving strong resistance to the claim that any search of a cell phone incident to arrest was permissible, and he therefore moved to the fallback, which the State of California had argued in its brief.
The committee’s program afforded the Section Annual Conference audience the opportunity to watch two highly experienced appellate advocates handle questions from an engaged and thoughtful panel of judges. The unique feature of having the participants discuss their goals and issues beforehand provided the audience greater insight into the argument as it developed. Rather than merely observe the technical expertise of the advocates, the attorneys watching could compare how the arguments evolved to what the advocates originally wanted to accomplish. As Kannon Shanmugam commented at the end of the program, the real advocates before the Supreme Court had a high standard to meet.
Republished with permission from the American Bar Association. Originally published in its Summer 2014 Appellate Practice Newsletter.
