Archive | Cell Phone Searches

What Happened to the Cell Phone Search Petitions?

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 [...]

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Cell Phone Search Cases Calendared for 12/6 Conference

Back in August, I wrote about two pending cert petitions before the Supreme Court involving when the Fourth Amendment allows the government to search a search phone incident to arrest. Today the Court scheduled the two cases for the December 6th conference. In other words, it’s likely (but not certain) that we’ll find out then whether the Court will take one or both of the cases to hear them on the merits.

The delay presumably was caused by the Court waiting for the Brief in Opposition in Wurie. Wurie received two extensions on the brief, ultimately filing last Friday, November 15th, and both cases were distributed for the December 6th conference today. The Wurie brief in opposition is here; it’s very bare bones, almost to the point of being useless. (Which may not be a bad strategic move, given the occasional reverse psychology of BIOs.)

If the Court grants in either case (or both), it will be the first bona fide computer search case before the Supreme Court. The first of many, I expect.

Hat tip: Michelle Olson [...]

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