Supreme Court Watch: Cell Phone Argument To Consider Scope Of Fourth Amendment On Electronic Devices

The Supreme Court arguments on Tuesday will focus on two separate cases concerning whether cell phone evidence may be obtained incident to arrest under Fourth Amendment; in addition to addressing important issues concerning the manner and scope of any search of cell phone data, will the case clarify recent questions on whether the analysis under the Fourth Amendment is being reconsidered for electronic and technology issues?; while both cases involve the arrest of individuals, the seizure of cell phones during the arrest, and search of the cell phones incident to the arrest, one case involves a flip phone and the other a touch screen phone, in United States v. Wurie (No. 13-212) and Riley v. California (No. 13-132)

As the end of the year, the Federal Evidence Blog posed thee question whether recent Supreme Court cases "suggest that new analytical approaches may be emerging concerning the application of the Fourth Amendment to privacy interests concerning digital data." On Tuesday, April 29, 2014, the Supreme Court will hear argument in two cases concerning the scope of Fourth Amendment protections for cell phones. This is an issue that has divided the lower courts. See generally Circuit Split: Courts Divided On Search Of Cell Phones Incident To Arrest ("The Fourth, Fifth and Seventh Circuits along with the Georgia, Massachusetts, and California Supreme Courts have upheld the seizure of this evidence. The First Circuit and Florida and Ohio Supreme Courts have not. The Eleventh Circuit has noted an open issue.") (collecting cases). For one of the cases, two First Circuit Judges encouraged the Supreme Court to provide guidance. United States v. Wurie, 724 F.3d 255 (1st Cir. 2013) (order denying rehearing en banc).

Questions Presented

  • The question presented in California v Riley, as approved by the Court, is: "Whether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights."
  • The question presented in United States v. Wurie is: "Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cell phone found on a person who has been lawfully arrested."

Initial Issues and Observations

The Supreme Court has not previously considered the application of the search incident to arrest and Fourth Amendment to cell phones seized following an arrest. There is no dispute that the cell phones could be seized during the arrest. The cases present a question about the ability of the government to conduct a search of cell phone data without a warrant. Based on the briefs, some initial observations can be made on the eve of oral argument:

Distinguishing A Cell Phone From Other Items: To what extent are cell phones different from other personal items that may be seized during an arrest under the Fourth Amendment? The First Circuit concluded that, "In reality, 'a modern cell phone is a computer,' and 'a computer ... is not just another purse or address book.'" The storage capacity of today's cell phones is immense." Wurie, 728 F.3d at 8 (quoting United States v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012)). The government contends that the "examination of a cell phone is ...materially indistinguishable from the inspection of items found on the person of an arrestee that this Court and common-law courts historically have upheld under the search-incident-to-arrest doctrine." Some items have included "diaries, address books, briefcases, and purses." Wurie Petitioner's Brief, at 11, 26. As the Solicitor General contends, “Cell phones do differ from objects that police have searched incident to arrest since the Founding era in their greater storage capacity: not different kinds of information, but potentially more of it.” Riley Brief of the United States as Amicus Curiae, at 23.

Should The Type Of Cell Phone Or Device Matter?: Assuming that cell phones may be considered to be different than other personal items, to what extent should the type of phone matter? The cell phone in Wurie is a "flip phone" or relatively basic cell phone. The cell phone in Riley is a touch-screen phone, specifically a Samsung SPH-M800 Instinct. What if instead of a cell phone, a tablet computer (such as an iPad) was involved?

Nature and Scope of Search: Will the case identify any limits to the scope of any search? For example, if recently called numbers can be checked, what about emails or text messages or photographs or videos or calendar or address information? To what extent does it matter if law enforcement reasonably concludes that evidence may be destroyed? Depending on the facts, may other Fourth Amendment exceptions apply to similar facts, such as an inventory search following an arrest? Will a limited search for identify information and recent cell phone activity be authorized? Under what circumstances would a broader search be reasonable under the Fourth Amendment?

Search Justifications: A number of justifications for a search incident to arrest have been highlighted in the briefs. For example, this includes the ability to gather evidence of the offense; prevent the concealment or destruction of evidence, loss of data based on a battery drain, and officer safety. The government notes that cellphones can be locked or the data could be wiped remotely. See Wurie Petitioner's Brief, at 34-41; Riley Petitioner's Brief, at 35; Riley Brief of the United States as Amicus Curiae, at 13-http://federalevidence.com/pdf/US.v.Wurie/Riley.Amici.StCrimInvestig.pdf16 & n.8.

In contrast, petitioner Riley argues that special privacy concerns are implicated by a search of cell phone data:

The stakes are high: Americans use smart phones to generate and store a vast array of their most sensitive thoughts, communications and expressive material. Because the core purpose of the Fourth Amendment has always been to safeguard such personal and professional information from exploratory searches, this Court should hold that even when officers seize smart phones incident to lawful arrests, they may not search the phones’ digital contents without first obtaining a warrant.

Brief of Petitioner David Leon Riley, at 3. He also counters that “[t]here is zero chance, however, that the digital contents of a smart phone can threaten officer safety.” Brief of Petitioner David Leon Riley, at 19. Some of the briefs suggests that cell phone data can be adequately preserved pending a search warrant. See, e.g., Brief of Petitioner David Leon Riley, at 20-24; Brief Amici Curiae of Criminal Law Professors In Support of Private Parties.

First Amendment Interests: Some briefs suggests that the First Amendment right of association may be interfered with by allowing the government to search and find which groups an individual may belong to. See, e.g., Brief of Petitioner David Leon Riley, at 31 (“Searching the digital contents of a smart phone incident to arrest for evidence of criminality is unreasonable for another reason: it implicates constitutional interests in safeguarding private communications, as well as free expression and association, from official intrusion.”); Riley, Brief amici curiae of American Civil Liberties Union, at 28-29.

Impact On Prior Precedent: The search incident to arrest doctrine generally applies to a search of an arrestee and objects possessed by the individual and the area around an arrestee. To what extent will prior case law concerning a search incident to arrest apply? How should prior precedent apply to electronic data seized during an arrest? See generally United States v. Robinson, 414 U.S. 218 (1973) (search of cigarette package inside defendant's pocket resulting in discovery of heroin); United States v. Edwards, 415 U.S. 800 (1974) (search of defendant's old clothing at the detention facility ten hours after his arrest); United States v. Chadwick, 433 U.S. 1 (1977) (search of a footlocker an hour and a half after arrest), abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991).

Another question concerns whether and how the Fourth Amendment analysis applies from Maryland v. King, _ U.S. _, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013)? In fact, dissenting First Circuit Judge Howard noted:

If anything, my dissent looks better in light of the Supreme Court's recent opinion in Maryland v. King, _ U.S. _, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), in which the Court held as constitutional Maryland's practice of swabbing violent-crime arrestees for DNA samples. The majority opinion, relying on the exact same language that I quoted in dissent, reaffirmed the core holding in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) — that the search of a person and items in his immediate control incident to an arrest requires no independent justification other than the arrest itself. King, 133 S.Ct. at 1971-72. Indeed, the dissent in King, while taking a more restrictive view of searches incident to arrest, still articulated a rule that likely would have permitted the search of Wurie's cell phone as a search for evidence of the crime he committed. Id. at 1982 (Scalia, J., dissenting) ("The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest."). This only strengthens my belief that the majority's rule is the only rule under which the search of Wurie's cell phone was unconstitutional. But that rule is simply without precedent.

Wurie, 724 F.3d at 255-56 (1st Cir. 2013) (Howard, J., statement on denial of rehearing en banc).

Other Legal Theories: Depending on the circumstances, other legal theories may justify a search of cell phone data, including exigent Circumstances, Wurie Petitioner's Brief, at 28 n.8, or an inventory search. Brief Amici Curiae of Center for Democracy & Technology, and Electronic Frontier Foundation In Support of Riley and Wurie, at 24 n.30.

Early Solicitor General Involvement In Wurie: The Solicitor General's Office has taken an early role in the Wurie case. Deputy Solicitor General Michael Dreeben participated in the appeal before the First Circuit. After the circuit opinion, he participated in the petition to rehear the case en banc. See United States v. Wurie, 728 F.3d 1 (1st Cir. May 17, 2013); Wurie Petition to Rehear the Case Banc; United States v. Wurie, 724 F.3d 255 (1st Cir. 2013) (declining to rehear the case). The Solicitor General's office filed the petition for certiorari review in Wurie and is participating as an amicus curiae in the Riley case.

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The following briefs and rulings have been filed in both cases:

United States v. Wurie (No. 13-212)

Merits Briefs

Amicus Briefs

Certiorari Petition Briefs

Lower Court Rulings and Record

  • May 4, 2009: U.S. District Court for the District of Massachusetts: United States v. Wurie, 612 F.Supp.2d 104 (D. Mass. 2009) (in denying the defendant's motion to suppress, concluding that "[t]he search of Wurie's cell phone incident to his arrest was limited and reasonable.")
  • May 17, 2013: U.S. Court of Appeals for the First Circuit: United States v. Wurie, 728 F.3d 1 (1st Cir. 2013)
  • July 29, 2013: U.S. Court of Appeals for the First Circuit: United States v. Wurie, 724 F.3d 255 (1st Cir. 2013) (Order on denial of rehearing)
  • Supreme Court Docket

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Riley v. California (No. 13-132)

Merits Briefs

Amicus Briefs

Certiorari Petition Briefs

Amicus Curiae Briefs

State Court Ruling and Record

  • Feb. 8, 2013: Court of Appeal of California, Fourth Appellate District, Division One: People v. Riley, 2013 WL 475242 (Feb. 8, 2013) (No. D059840) (unpublished)
  • Supreme Court Docket

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