Archive | Searches Incident to Arrest

Two Petitions on Searching Cell Phones Reach the Supreme Court

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 [...]

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First Circuit Denies En Banc Review in Cell Phone Search Case, But Two Judges Ask Supreme Court To Step In

Two weeks ago, when DOJ petitioned for rehearing en banc in United States v. Wurie, the Fourth Amendment case on searching cell phones incident to arrest, I wrote that the petition for rehearing was a possible preview of a future DOJ cert petition:

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.

Well, the denial of rehearing didn’t take long: Today the First Circuit denied rehearing en banc. Notably, both Chief Judge Lynch and Judge Howard authored separate statements asking the Supreme Court to step in and review the issue. Here is the entirety of Judge Lunch’s statement:

I vote to deny rehearing en banc not because the case does not meet the criteria for en banc review. It clearly does. Indeed, the issues are very important and very complex.

I vote to deny rehearing en banc because I think the preferable course is to speed this case to the Supreme Court for its consideration. There are two very able opinions from this court, and en banc review in this Court could not improve on their presentations of the issues.

The decision in this case creates a circuit split with respect to the validity of warrantless searches of cell phones incident to arrest. State courts similarly

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First Circuit Rules That Police Need a Warrant to Search A Cell Phone Incident to Arrest

I’ve blogged a few times about the substantial lower court division on whether the police can search a seized cell phone incident to arrest without a warrant under the Fourth Amendment. Today the First Circuit further deepened the split in United States v. Wurie by holding that a warrant is required.

With Wurie today and the Florida Supreme Court’s decision in Smallwood a few weeks ago, I would think that Supreme Court review of this legal question is highly likely sometime soon. (Notably, Deputy SG Michael Dreeben argued Wurie for DOJ.)

For my own views on the question, see my short essay Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013). [...]

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Florida Supreme Court Deepens Lower Court Split on Searching a Cell Phone Incident to Arrest

I recently mentioned my new short essay, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013), about how the Supreme Court should resolve the lower court division on the Fourth Amendment rule for searching a cell phone incident to arrest. In light of that, I thought I would flag this morning’s decision by the Florida Supreme Court deepening the lower court division. In the new case, Smallwood v. State, the court ruled that the police can routinely seize a cell phone incident to arrest, but they generally need a warrant to search it absent a demonstrated risk that evidence on the phone could be destroyed after it had been seized. Here are the two key passages from Smallwood:

[W]e . . . conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.

. . . .

Gant demonstrates that while the search-incident-to-arrest warrant exception is still clearly valid, once an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence, the dual rationales for this search exception no longer apply. Applying Supreme Court precedent from Chimel and Gant to the instant case, we conclude that Officer Brown unquestionably was authorized to take physical possession

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Judge Posner on Searching a Cell Phone Incident to Arrest

I am often filled with a mild sense of both excitement and dread when I learn that Judge Posner has authored an opinion in areas of law that I follow closely. Excitement, because I know it will be fascinating to read. And dread, because I know it will be filled with extensive error-prone dicta on issues not briefed and reasoning that is hard to square with existing precedents. On that score, Judge Posner’s opinion today in United States v. Flores-Lopez doesn’t disappoint. The issue: When the Fourth Amendment allows the police to search a cell phone incident to arrest. The conclusion: As far as I can tell, Judge Posner seems to have some sort of graduated scale in mind, in which minimally intrusive searches of phones are okay as a routine matter incident to arrest but more extensive searches require more justification or maybe a warrant.

Judge Posner starts by addressing the Supreme Court’s precedent in United States v. Robinson. Robinson held that the Fourth Amendment permits a full search of property on the person at the time of arrest incident to arrest. The government argued that Robinson applied to cell phones the same as other property. Judge Posner responds:

This is a fair literal reading of the Robinson decision. But the Court did not reject the possibility of categorical limits to the rule laid down in it. Suppose the police stop a suspected drug dealer and find a diary, but a quick look reveals that it is a personal diary rather than a record of drug transactions, yet the officers keep on reading. A court might say that acquiring information known to be unrelated to the crime of which the person being arrested is suspected is an intrusion beyond the scope of Robinson’s rule.

That’s hard to square [...]

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