PUT DOWN YOUR PHONE

 This is a plea. Maybe it can be dismissed as a plea made by a grumpy Non-Gen X,Y,Z,A male blogger. But maybe you should pause a moment and consider it. 

First, what we are not asking. Keep your phone on whilst waiting for your case to be called in court. The Judge is playing candy crush on her screen on the bench, so there is no reason why you should not be trying to advance to the next level. 

Keep your phone on during that bad Hinge date because maybe you get a Tinder match and can hook up once you ditch Mr. I’m getting an MBA to work at Goldman Sachs and then in twenty years I’m going to use my Art History Degree to open a Bed and Breakfast in Bend, Oregon and decorate it in post modern 1870’s  Egyptian Street Art,  or Ms. I left my job at an advertising firm and make 40K a month as a food and bar influencer for NYC concentrating on FIDI so please take my IG and Tik Tok… 

We get it. You need your phone. We all do. 

Flash back to last year. Rumpole is blissfully wandering through the Van Gogh exhibit at the Met in NYC on Fifth Avenue. We are a member so we don’t wait in lines. In the galleries there are an overwhelming number of tourists. We can tell by the foreign languages they are speaking. And we can tell because they ALL- EVERY ONE OF THEM - have their phones out and are relentlessly and furiously recording every single picture. A middle aged Asian woman from China, her brow furrowed, darts from Van Gogh to Van Gogh, a ten second video and vroom! She’s elbowing her way to the front of the next one to do the same. It’s like the paintings are the plans to the Atomic Bomb and she’s Ethel Rosenberg. *

Recently, some idiot tourist sat on a crystal chair in the Palazzo Maffei in Verona, Italy, breaking it. Last week a tourist in the Uffizi in Florence backed into a 17th century painting of Fernando de Medici, tying to replicate Medici’s pose for their selfie. 

In the Met, few were contemplating Van Gogh’s masterpieces. The golden wheat fields, the beguiling self portraits, one done months before the artist took his own life. The impact of art on the soul was lost. The experience became one long post card- a picture of the leaning tower of Pisa, or the Eiffel Tower, or Buckingham Palace- I was here- LOOK. LOOK AT ME NEXT TO VAN GOGH’S SUNFLOWERS … I WAS HERE… I DID THIS….DON’T YOU WANT TO BE ME?

No, we don’t. There is not one piece of art that has not been digitized and is not available for free on line. So why lose the experience of art on the desperate desire to prove you saw the painting? 

It makes no sense. 

We can spend an hour looking at one or two Rothkos and get lost in the wonder of how a few stripes of paint on a canvass makes us feel. And then we can repair to a favourite coffee shop in the West Village and debate Rothko’s influence over a dark espresso and crusty croissant. Is there not a better way to spend a day?  How can anyone who races through an exhibition with their phone out recount how the art affected them if they don’t spend time contemplating the picture? 

It makes no sense. 

One last analogy. Imagine watching Tom Seaver in 1969 pitch a two-hit shutout as the Miracle Mets were on their way to an improbable World Series victory. Seaver was one of the great pitchers of all time.  We saw him do this at Shea stadium that year. The sound of the ball popping in the catcher’s glove is indelible. The frustrations on the faces of hitters who could not figure him out remains with us to this day. And we had no phone. No camera. We just sat and watched and were washed over in the experience of being there. 

 That is what our phone generation is losing- the experience of seeing and feeling. They are replacing it with the proof of presence. I WAS THERE.  I DID THIS. 

But can they answer the most important question of all: How did it make you feel? 

* Ethel and Julius Rosenberg were innocent. But that is a post for another time. 

WHATS'S THE DOUGHBOY AFRAID OF?

 Before we begin, the State of Alabama ( Motto: "Trump Y'all!") gassed one of its citizens yesterday. Anybody care?

When we were in Boston, well before Mr. Markus was roaming the halls of Hahvahrd Lawh School becoming radicalized, there was a small ice cream company in Vermont called Ben and Jerrys that was trying to break into the Boston market. Pillsbury, which owned Haagen Dazs told stores if they sold Ben and Jerrys they would pull Haagen Dazs from their shelves. Ben and Jerry's responded with billboard ads and bumper stickers in Boston with the slogan   "What's the Doughboy Afraid Of?"  At a time when most people in the 1970s didn't use Instagram, the campaign worked, and eventually everyone could eat Chunky Monkey after dinner. 

A Bumper Sticker- sort of like Instagram without the internet

Which brings us to Federal Court and phones. "What's the Doughboy afraid of? When Rocky beats Clubber Lang in the rematch in Rocky III after losing the title to him, he lets Lang repeatedly hit him and responds "you ain't so bad". He was opening up to his fear, experiencing the worst and moving through it.   

So what's the worst that could happen in Federal Court?  A person surreptitiously records a judge sentencing a defendant above the guidelines for going to trial and losing?  "Mr. Jones knew the risks when he went to trial. When you exercise your sixth amendment rights and lose, you pay the price." 

We survived Covid;  the federal judiciary appears strong enough to survive an iPhone.  This is one of those rare occasions when State courts have successfully navigated an issue the feds seem incapable of resolving. It is not like Snaptok is full of videos of judges denying motions to suppress. They just call their balls and strikes, enforce abortion restrictions, stomp on the tattered remains of the Fourth Amendment without social media exposure and move on.  

And all of this is a prelude to a couple of federal trials with a former president that are looming. Any chance the judges buy new robes and let a camera in to broadcast the proceedings? 

 "What's the Doughboy Afraid Of?" 

PRIVACY COMES AT A COST

The Supreme Court has spoken on the 4th Amendment. "Can you hear me now?" Riley v. California. 
The police need a warrant to search a cell phone, duh. 

The 4th amendment is about reasonableness (...unreasonable search and seizures...) and reasonableness generally requires a warrant to seize evidence. 

Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement "by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Such a balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrantless searches at issue here.

But while Robinson's categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones. On the government interest side, Robinson concluded that the two risks identified in Chimel-harm to officers and destruction of evidence-are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information [*9] on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.

We therefore decline to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.

Potential harm is a big issue for this analysis:

Perhaps the same might have been said of the cigarette pack seized from Robinson's pocket. Once an officer gained control of the pack, it was unlikely that Robinson could have accessed the pack's contents. But unknown physical objects may always pose risks, no matter how slight, during the tense atmosphere of a custodial arrest. The officer in Robinson testified that he could not identify the objects in the cigarette pack but knew they were not cigarettes. See 414 U.S., at 223 , 236, n. 7. Given that, a further search was a reasonable protective measure. No such unknowns exist with respect to digital data. As the First Circuit explained, the officers who searched Wurie's cell phone "knew exactly what they would find therein: data. They also knew that the data could not harm them.

Rumpole says: The Data cannot cause harm? Ha! Tell that to the defendant whose wife see's his text messages....

More nuggets:

The fact that an arrestee has diminished privacy interests does not mean that the Fourth Amendment falls out of the picture entirely. Not every search "is acceptable solely because a person is in custody."

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person. The term "cell phone" is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

...

Mobile application software on a cell phone, or "apps," offer a range of tools for managing detailed information about all aspects of a person's life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase "there's an app for that" is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user's life. 

...

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is "a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him. If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previ-ously found in the home; it also contains a broad array of private information never found in a home in any form-unless the phone is.

...

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Individual rights and freedoms come at a cost too. See You In Court, more motions to suppress to file.