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 [...]