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 searching a cell phone incident to arrest: Remote searches. Some have asked whether cell phone searches could include remote searches, such as pulling data from the cloud when a person accesses e-mail on a smart phone. As far as I can tell, though, nobody on the government side alleges that a search of a cell phone could include remote access of information from the cloud. And that’s true for a simple reason. If the information is being pulled from a remote server and made available on the phone, accessing it is a search of the remote server. No one alleges that the authority to search a person’s property on their person incident to arrest also authorizes a search of property that could be thousands of miles away. So the question is only when the government can search the information already stored on the phone, not when the government can access remote files.