Cell Phone 'Search Incident to Lawful Arrest' Cases Get Cert

For anyone concerned with data privacy, the rights of the accused, criminal law, the Fourth Amendment, the limits of searches incident to lawful arrest, and law enforcement, there are two cases you need to keep an eye on this term: Wurie and Riley.

Both cases were granted certiorari this morning, and both involve the search of cell phones as part of a search incident to a lawful arrest (SITA). One, Riley, involved a smartphone, while the other, Wurie, involved a "dumb" flip-phone, but both present the same quandary: should a warrant be required to search the contents of a phone when the urgency typical of a SITA is lacking? After all, the evidence isn't going anywhere, as the phone won't delete itself, and there is no danger to the safety of law enforcement officers.

United States v. Brima Wurie: First Circuit Holds Search Violates Fourth Amendment

A cocaine deal was sniffed out by the cops, who arrested Brima Wurie shortly after busting the buyer. Officers searched Wurie's two non-smart phones, and used the information to locate his home, where additional evidence was located.

The First Circuit held that due to the lack of exigent circumstances, a warrant was required and the search violated the Fourth Amendment. Despite disagreement on the merits amongst the First Circuit judges, the en banc denial was rushed in order to fast-track the case to the Supreme Court, with the judges noting that there is a massive circuit split here, with the First Circuit, Florida, and Ohio standing as "outliers" against, in part, the Seventh and Fifth Circuits.

Riley v. California: Smartphone Search Incident to Lawful Arrest Permissible

The facts of this case aren't remarkable. An alleged gang member, along with two of his pals, shot up a rival member's car as it was driving by. He was arrested, days later, and while in custody, his phone was searched twice. On the phone, there were pictures of Riley making gang signs. Phone records showed that the phone was used near the place of the shooting, and thirty minutes later, near the location of a the red getaway car, found by police, and earlier spotted at the shooting.

The unpublished Riley decision upheld the search of the phone as part of a SITA under controlling precedent from the California Supreme Court. That case, Diaz, goes even further than an immediate search of a phone. It held that even if there was a delay between the arrest and a search, the only determinative factor is whether the phone was on the arrestees' person at the time of the arrest.

A Big Deal

Neither case involved a scenario where the police pored into smartphone accounts, cloud storage, or social media accounts. The searches extended to phone records, texts, and photos and videos on the devices themselves. Even still, as the First Circuit pointed out, there is no exigent circumstances or emergency. Even with "remote wipe" features on modern phones, you can just turn the darn things off, remove the batteries, or copy the data using forensic tools, while waiting for a warrant.

The original purpose of the SITA doctrine was to prevent the spoliation of evidence and to protect the safety of arresting officers. Neither is an issue when the phone can be turned off.

On the other hand, consider the privacy implications for the modern smartphone user. Not only are our devices mini-computers in our pockets, with an incomprehensible amount of personal data stored within, but those phones connect to social media, cloud storage, email, and other online accounts that contain even more information.

Balance those two, then ask yourself: should a warrant be required under the Fourth Amendment?

Related Resources:

• United States v. Wurie (FindLaw)
• People v. Riley (Unpublished - Cal. Ct. of Appeal)
• Navarette v. California: Big Case for Traffic Stops, 4th Amendment (FindLaw's California Case Law Blog)
• What Will the Fourth Amendment Mean After Fernandez? (FindLaw's California Case Law Blog)