CHIEF JUSTICE ROBERTS: The number's in plain view. I mean, is
answering the phone -- can you do it or not? You know what number is calling.
Is it like someone -- you're conducting a search on the house and somebody
knocks on the door? You can open the door, right?
MS. MIZNER: Yes. And they perhaps could have answered the phone in
this case, but they didn't.
JUSTICE KENNEDY: No, but what is your position? What is the rule
you want us to adopt in response to the Chief Justice's question?
MS. MIZNER: I would say that they could answer the phone.
Tr. at 30 (my emphasis).
Wait, what? I think that conceding this was a significant mistake, for two reasons. First, if we assume that police could take the significant step of answering the phone, it's a very small step to saying that police can look through the phone. See Tr. at 31 (the Chief Justice called answering the pone a "big, different step"). There are good reasons to think that answering an incoming call is a more intrusive invasion of a person's privacy than looking through the phone. When police look through the phone, they can only learn facts that are already contained on the phone. For that reason, a person can control what a police officer can learn by choosing not to put certain info on the phone. But when police answer a call, the person has lost the ability to control what the officer learns.
Worse still, an officer who answers a call transforms the phone--which still belongs to the person, of course--into a device for investigating that person. A great example of this was the Lopez-Cruz case. 730 F.3d 803 (9th Cir. 2013). In Lopez-Cruz, a border patrol agent asked for the defendant's consent to "look in" and "search" the defendant's phone. The defendant consented. As the agent was looking through the phone's data, the phone rang. The agent answered the call and in a series of later calls, obtained evidence incriminating the defendant. It's possible that, without answering the phone, the agent would have learned incriminating evidence from merely searching the phone. But by actually answering a call, he was able to create evidence that previously did not exist.
Answering a person's phone is also no different from the trespass that occurred in Jones. There, the police transformed the defendant's car into a device for tracking the defendant wherever he went. This is what we find intuitively wrong about this type of police behavior: It co-opts our own possessions and turns them against us. We don't like to believe that our own things are being used to spy on us.
Second, there was no good reason to make the concession. Defense counsel could have said "No, they can't answer the phone" and her arguments would have remained logically consistent. Supreme Court precedent didn't require that answer. To be fair, the courts of appeals have held that police can answer a home phone when they are searching the home pursuant to a warrant, but that is quite clearly a far cry from the concession here. Some courts have even said that police can answer a phone so long as they are lawfully present in the same area as the phone; but those decisions are (A) wrong; and (B) irrelevant in a Supreme Court oral argument.
Nor did defense counsel gain any credibility by making the concession, as far as I can tell. That was clear when defense counsel attempted to explain the doctrinal basis for her broad approach:
JUSTICE SOTOMAYOR: Under what theory? I don't disagree with you. I
just want to know what would be your theory, and what's the limitation?
MS. MIZNER: Well, in the sense it's -- it's plain hearing. It is a
-- an analogue of plain view. There is nothing particularly private about the
ringing. And if you -- the policeman can answer the phone. It doesn't mean that
the person on the other end has to respond. It's --
JUSTICE SOTOMAYOR: I was thinking in terms of reasonable
expectation of privacy. Most people don't pick up other people's phones to
answer them unless the phone is lost. And then you pray the person who found it
answers it.
(Laughter.)
MS. MIZNER: And perhaps this would be analogous to -- to that. So
the --
CHIEF JUSTICE ROBERTS: So do you think -- it's got nothing to do
with plain hearing. I'm not saying they can't -- obviously they can hear the
ring. I'm just -- it's a big, different step to answer it.
MS. MIZNER: If the police have seized the phone and they can
secure it, pending application for a warrant to engage in a search of its
contents, then answering the phone could be viewed as part of -- of securing.
Tr. at 30-31.
If defense counsel had spent more than a second thinking about her "plain hearing" answer, she would have realized that the plain view doctrine doesn't get her to the result she espoused. Sure, police can hear the phone ringing; but they can't hear the person on the other end of the line until they take an additional step. That is, they have to answer the phone first, which requires manipulating it (i.e., pressing a button). That is precisely what the plain view doctrine doesn't allow -- unless the evidence the police want to manipulate already gives rise to probable cause of a crime, they can't manipulate it. See United States v. Paneto, 661 F.3d 709, 713-14 (1st Cir. 2011) (quoting Arizona v. Hicks, 480 U.S. 321, 326 (1987)). So here, unless the mere ringing of the phone gave rise to probable cause, they couldn't manipulate the phone by answering it.
The concession also implicates broader advocacy concerns. Defense counsel--who is a federal assistant public defender--is and should be chiefly concerned with representing the present interests of her client. But that doesn't mean that she shouldn't also look out for the interests of defendants on the whole. Who knows if her concession might result in a harmful bit of dicta (or a line in dissent) on whether police can answer a phone in this circumstance. That could negatively impact the law nationwide, all for zero upside.
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