DOJ Seeks En Banc Review in Searching Cell Phone Incident-to-Arrest Case

Today DOJ filed a petition for rehearing en banc in United States v. Wurie, the First Circuit case holding that a warrant is required to search a cell phone incident to arrest. (HT: Michael Scarcella) My earlier coverage of Wurie is here.

I wouldn’t be surprised if this filing offers us a preview of a future cert petition. The arguments in the petition resemble the kinds of arguments that would be made in a cert petition to the Supreme Court, and en banc review is relatively rare in the 1st Circuit. Plus, Deputy SG Michael Dreeben argued Wurie before the original panel. Filing a petition for rehearing may also be a way of keeping other cases out of the Supreme Court in the short term; the possibility of en banc review arguably keeps Wurie out of the split count. Either way, stay tuned.

Speaking of DOJ cert petitions in computer search cases, the Supreme Court docket sheet for the 9th Circuit’s recent en banc computer border search case, United States v. Cotterman, suggests that DOJ was considering filing a cert petition but may have elected in the end not to do so. I’m not sure of that, though, as neither the docket sheet nor OSG’s list of petitions are kept as up to date as they could be. Anyway, my coverage of the en banc decision in Cotterman is here.

UPDATE: On Cotterman, commenters Anon and SM make the very good point that DOJ may be waiting for Cotterman’s petition. Recall that DOJ lost the big issue but technically won the case — on a ground it refused to argue — raising the Camreta question of whether it could bring a petition seeking review of the CA9 opinion. In contrast, Cotterman lost and has said he would seek Supreme Court review; his due date for a petition is in August. If Cotterman files, DOJ can then take a position and perhaps not oppose Cotterman’s petition. That could trigger Supreme Court review without DOJ having to get into the Camreta issue.