Circuit Split: Courts Divided On Search Of Cell Phones Incident To Arrest

Recent cases highlight a division among the courts on whether cell phones may be searched incident to arrest and without a search warrant; other questions concern the scope of any search (such as last numbers called and minimal contact information to a review of content such as emails and photographs); after one judge observes that "cell phones sit at the intersection of several different Fourth Amendment doctrines," two First Circuit Judges have suggested the Supreme Court should address these issues, in United States v. Wurie, 724 F.3d 255 (1st Cir. 2013) (order denying rehearing en banc)

Concerns about privacy over digital information and government intrusion present new questions on how the Fourth Amendment applies to digital evidence. See, e.g., United States v Jones, 565 U.S. _, 132 S.Ct. 945, 948, 181 L. Ed. 2d 911 (2012) (opinion highlighting different approaches on "whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment"). One area involves cell phone data. For example, while it is well-established that law enforcement may conduct a search of a container incident to arrest, do the container principles necessarily extend to cell phones? See New York v. Belton, 453 U.S. 454, 460 n.4 (1981) (describing a "container" within a vehicle as "any object capable of holding another object" and including "closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like"; upholding search of jacket inside passenger compartment incident to arrest); see also United States v. Robinson, 414 U.S. 218, 233-24 (1973) (search of cigarette package incident to arrest). The courts are divided on the issue of whether and the extent a cell phone may be searched incident to arrest or other principles under the Fourth Amendment.

Cell phones are unique in that they may contain a substantial amount of information and possibly evidence, including contact information, telephone numbers called, email and text messages, photographs, and more. Many cell phones are essentially mini-computers. How far can law enforcement go in searching this data incident to an arrest and without a search warrant?

First Circuit Judges Suggest The Supreme Court Should Decide The Issue

These issues were squarely presented earlier this year in a First Circuit case decided by a divided panel. Originally, the district court denied a motion to suppress, and the defendant was convicted a trial on firearm and drug offenses. See 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"). The divided First Circuit panel vacated the convictions and remanded. United States v. Wurie, 728 F.3d 1 (1st Cir. May 17, 2013). The government filed a petition to rehear the case en banc. The First Circuit decided not to rehear the case. United States v. Wurie, 724 F.3d 255 (1st Cir. 2013). However, two judges dissented and urged the Supreme Court to address the issue. Chief Judge Sandra L. Lynch voted to "deny rehearing en banc because" she concluded that "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." Wurie, 724 F.3d at 255 (Lynch, C.J., statement on denial of rehearing en banc). First Circuit Judge Jeffrey R. Howard, who originally dissented on the panel decision, also urged the Supreme Court to hear the case:

My view of this case has not changed since I dissented from the majority opinion. 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.

For prudential reasons, however, I believe en banc rehearing is unnecessary. Ultimately this issue requires an authoritative answer from the Supreme Court, and our intermediate review would do little to mend the growing split among lower courts.... Clearly, cell phones sit at the intersection of several different Fourth Amendment doctrines, and I suspect that each new case will result in a slightly different interpretation of how to treat these searches. Given this likely outcome, I welcome speedy resolution from the Supreme Court, and see no need to delay by reconsidering this case.

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

Other Cell Phone Search Cases

The federal and state courts are divided on whether cell phone evidence may be seized without a warrant following an 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. The following cases highlight the current division:

  • Fourth Circuit: United States v. Murphy, 552 F.3d 405, 411-12 (4th Cir. 2009) (No. 07-4607) (upholding search of the contents of a cell phone as a search incident to arrest), cert. denied, 129 S.Ct. 2016 (2009); United States v. Young, 278 Fed. Appx. 242, 245-46 (4th Cir. 2008) (No. 07-4213) (per curiam) (upholding retrieval of text messages from cell phone as search incident to arrest; "officers had no way of knowing whether the text messages would automatically delete themselves or be preserved"), cert. denied, 129 S.Ct. 514 (2008)
  • Fifth Circuit: United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (No. 06-50160) (upholding search of "call records and text messages retrieved from" cell phone as a search incident to arrest), cert. denied, 549 U.S. 1353 (2007); United States v. Rodriguez, 702 F.3d 206, 208, 209-10 (5th Cir. 2012) (No. 11-41020) (affirming denial of motion to suppress cell phone "pictures of the concealed marijuana" obtained as a search incident to arrest applying Finley); United States v. Curtis, 635 F.3d 704, 712-13 (5th Cir.) (No. 09-20491) (denying motion to suppress "two text messages ... during a search of his cell phone" after the defendant's arrest on other charges; "The search extended only to Curtis's person and the area within his immediate control. Finley authorizes a police officer to search the electronic contents of a cell phone recovered from the area within an arrestee's immediate control.") (footnotes omitted), cert. denied, 132 S.Ct. 191 (2011)
  • Seventh Circuit: United States v. Flores-Lopez, 670 F.3d 803, 810 (7th Cir. 2012) (No. 10-3803) (concluding that "[l]ooking in a cell phone for just the cell phone's phone number does not exceed" Fourth Amendment standards)
  • Tenth Circuit: Silvan W. v. Briggs, 309 F. App'x 216, 225 (10th Cir. 2009) (No. 07-4272) ("the permissible scope of a search incident to arrest includes the contents of a cell phone found on the arrestee’s person")
  • Eleventh Circuit: United States v. Allen, 416 Fed. Appx. 21, 27 (11th Cir. 2011) (No. 09-14444) ("Whether the warrantless search of a cell phone incident to arrest violates a person’s Fourth Amendment expectation of privacy is an unanswered question in this Circuit. It is a fairly difficult question, however, it is also a question that we need not answer today. The law is clear that potential Fourth Amendment violations are subject to a harmless error analysis, and we find that the facts here are equally clear that any error would be harmless.").
  • Divided State Court Decisions: The Georgia, Massachusetts, and California Supreme Courts have affirmed the admission of cell phone evidence obtained following an arrest. See Hawkins v. State, 723 S.E.2d 924, 925-926 (Ga. 2012) ("the similarity of a cell phone to a traditional container in which there might be found physical entities of evidence is clear; it is reasonable to believe that the object of the search will be found inside the cell phone"); Commonwealth v. Phifer, 463 Mass. 790, 979 N.E.2d 210 (2012) (upholding "a limited search of a defendant’s cellular telephone’s recent call history for evidence directly relating to the crime for which defendant was arrested"); Commonwealth v. Berry, 463 Mass. 800, 806, 979 N.E.2d 218 (Mass. 2012) ("the warrantless search of the cellular telephone here was not rendered invalid because it occurred sometime after the defendant's arrest and at the police station rather than contemporaneously with his arrest"); People v. Diaz, 51 Cal. 4th 84, 244 P.3d 501, 503-511 119 Cal. Rptr. 3d 105 (Cal.) (concluding that the Fourth Amendment "permits law enforcement officers, approximately 90 minutes after lawfully arresting a suspect and transporting him to a detention facility, to conduct a warrantless search of the text message folder of a cell phone they take from his person after the arrest"), cert. denied, 132 S.Ct. 94 (2011).
  • In contrast, the Florida and Ohio Supreme Courts have found this evidence inadmissible. See Smallwood v. State, 113 So.3d 724, 738 (Fla. 2013) ("We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one’s person."); State v. Smith, 124 Ohio St.3d 163, 170-71, 2009-Ohio-6426, 920 N.E.2d 949, 952-955 (Ohio 2009) ("We hold that the warrantless search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth Amendment when the search is unnecessary for the safety of law-enforcement officers and there are no exigent circumstances."), cert. denied, 131 S.Ct. 102 (2010).

Conclusion

While there was disagreement on the First Circuit on how to resolve the issue, there was a strong sentiment to suggest that the Supreme Court should take up the matter. The different approaches among the courts and current division support the need for clarification on whether a warrantless search incident to arrest and if so on the circumstances or scope of any search.

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