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U.S. Supreme Court to decide whether warrantless search of cell phone incident to arrest violates Fourth Amendment

David L. Riley v. California, USSC 13-132

Question presented:

Whether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights.

Lower court opinion: People v. Riley, No. D059840 (Cal. App. 4th Dist., Feb. 8, 2013) (unpublished)


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United States v. Brima Wurie, USSC 13-212

Question presented:

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.

Lower court opinion: United States v. Wurie, 728 F.3d 1 (1st Cir. 2013)


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The significance of the issue to be decided is obvious, and the Court’s decision in these cases will likely be only the first dealing with the revolution in digital devices. As Orin Kerr has written, “[t]he computer will be to the 21st century Fourth Amendment what the automobile was to the 20th century Fourth Amendment. In both cases, transformative technologies justify technology‐specific rules.” Foreward: Accounting for Technological Change, 36 Harvard Journal of Law and Public Policy 403, 407 (2013).

Riley and Wurie are not formally consolidated, but the issues clearly overlap and intertwine, and they represent the division in the lower courts (described by Wurie, 728 F.3d at 3-7) that have addressed the question presented in the two cases. In Riley the defendant was stopped for a traffic offense and arrested; the police seized the smart phone he was carrying and twice examined it without a warrant. Data from the cell phone–including records showing when and where the phone was used and pictures and videos on the phone–linked Riley to a previous shooting. The search was held to be proper because it was incident to the defendant’s arrest. In Wurie, the defendant was arrested after making a suspected drug sale. One of the cell phones seized when he was arrested received repeated calls from a number identified on the phone as “my house.” After checking the phone’s call log the police found an address and (based on that and other evidence) obtained a warrant for the home which turned up additional evidence of drug dealing. The court rejected the government’s warrantless-search-incident-to-arrest rationale because it does not satisfy either of the two rationales for conducting such a search: Protecting arresting officers or preserving destructible evidence.

These two bases for search to incident were articulated in Robinson v. United States, 414 U.S. 218 (1973). Needless to say the world has changed since then, when a search through a person’s pockets which might contain keys, a wallet, cigarettes–in other words, a finite amount of personal property. No more, with latest-generation smart phones, which can contain (or be a portal to) reams of highly personal information: The equivalent of millions of pages of documents, thousands of photographs, hours of video, and connections to banking and medical and other confidential records stored on internet-connected servers. As Wurie put it,

We suspect that the eighty-five percent of Americans who own cell phones and “use the devices to do much more than make phone calls,” … would have some difficulty with the government’s view that “Wurie’s cell phone was indistinguishable from other kinds of personal possessions, like a cigarette package, wallet, pager, or address book, that fall within the search incident to arrest exception to the Fourth Amendment’s warrant requirement.”

728 F.3d at 8 (quoted sources omitted). Of course, not every cell phone is a “smart” phone, which makes the Court’s grant in both of these cases more significant: Wurie involved the increasingly obsolete “flip” phone, the data storage capacity of which pales compared to the “smart” phone that was searched in Riley. Whether the technological differences between the two devices matters for the Fourth Amendment could be resolved by the Court.

As for the impact on federal and state practice in Wisconsin, Wurie criticized the reasoning of the decision in United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012), which upheld a search limited to obtaining a cell phone’s number and left the propriety of wider-ranging searches for another day. Thus, an affirmance of Wurie may well alter Seventh Circuit precedent. (Note, though, that Flores-Lopez expresses the same concern as Wurie about analogizing a cell phone to pre-digital property like a diary, 670 F.3d at 805, so its reasoning is not so starkly opposed to Wurie‘s as the latter suggests.) In Wisconsin, State v. Carroll, 2010 WI 8, ¶33, 233 Wis. 2d 299, 778 N.W.2d 1, held that the search of a cell phones image gallery wasn’t justified by exigent circumstances--i.e., by a concern the images would disappear before a warrant could be obtained. (On Point provides more detail on the case and its holdings here.) Whether the Court’s decisions in these cases will affect any of the reasoning in Carroll remains to be seen.

UPDATE (1/22/14): For a more detailed analysis of the questions presented in these cases, see this post at the Federal Evidence Review’s blog.

UPDATE (2/25/14): The always thoughtful Orin Kerr has this post about possible Fourth Amendment rules the Court might consider in deciding these cases.

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