I mentioned a while ago that the two cert petitions on cell phone searches incident-to-arrest were calendared for December 6. They have been delayed, however, as the Court asked for the lower court record in Riley, the smart phone case. We don’t know what the Justices expect to get from the record, but it’s at least possible that some of them want to know exactly what the lower court record says about what searches were conducted. As I mentioned in my initial post on Riley, the facts are somewhat murky:
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.
That lack of clarity has been common in cell-phone search cases so far, I’ve noticed. Because the early cases broadly allowed warrantless cell phone searches incident to arrest, and the split is fairly recent, litigants and trial judges haven’t focused much on the factual details of what search occurred. It’s at least possible that this lack of detail might end up delaying Supreme Court intervention. But again, this is just uninformed speculation, worth exactly what you’re paying for it.
Incidentally, I wanted to note a question that I think is not implicated by the division of authority on […]