In recent weeks, two cert petitions have been filed seeking review of how the Fourth Amendment applies to searching a cell phone incident to arrest. Although the two cases raise the same legal issue, the facts of the two cases actually are pretty different. And the difference in the facts reflects the fast-moving evolution of cell phones.
First, on July 30th, Jeff Fisher filed this petition in Riley v. California, seeking review of a California appellate decision you can read here. Second, last Thursday, DOJ filed this cert petition in United States v. Wurie, seeking review of the The First Circuit’s decision requiring warrants for most cell phone searches.
The factual differences in the two cases are pretty interesting. Wurie involved a search in 2007, and the search of the phone was pretty narrow. The First Circuit described the phone as “gray Verizon LG phone,” and it noted that the phone had an “external caller ID screen on the front of the phone” and that had to be opened to be used. In other words, it wasn’t a so-called smartphone. It was probably something like this:
The officers in Wurie searched the phone only in two very limited ways. First, they opened the phone and saw a photograph set as the phone’s “wallpaper.” Second, they pressed a single button to view the phone’s call log and then pressed a second button to see the phone number associated with a programmed in contact that had called the phone.
The search in Riley appears to have been different. The Riley search occurred in 2009. A lot had changed in the cell phone world between 2007 and 2009. In June 2007, Apple introduced the iPhone, followed up a year later 2008 by the iPhone 3G. The phone searched in Riley was an iPhone competitor, the Samsung Instinct M800, introduced in 2008. It’s a smartphone, and it looks like this:
The exact scope of the search in Riley isn’t entirely clear, but it seems to have been a more wide-ranging search than in Wurie. According to the lower court opinion, the officer first “looked at Riley’s cell phone, [and] he noticed all of the entries starting with the letter K were preceded by the letter C, which gang members use to signify ‘Crip Killer.'” It sounds like this was a text search through the phone, although it’s not entirely clear. Second, the officer later “looked through the phone and found some video clips” and “some photographs.” This sounds like a more extensive search through the contents of the phone.
Given that the argument for treating cell phones differently from physical items hinges on the storage capacity and services available through smartphones, I think it would be very helpful for the Court to take a case involving a smartphone instead of a more primitive model. In recent years, smartphones quickly have become ubiquitous: About 35% of Americans owned one by May 2011, 46% owned one by February 2012, and 56% owned one by May 2013. (In case you’re wondering, 91% of Americans have cellphones, so about 61% of cell phones owned as of May 2013 are smart phones.) Reviewing a case with an earlier model phone would lead to a decision with facts that are atypical now and are getting more outdated every passing month.