In a post last week, I mentioned that it looks increasingly likely that Supreme Court will grant certiorari in a case considering cell phone searches. In this post, I’ll support that remark by describing two cases in which certiorari petitions have been filed and explaining why each is a strong candidate for Supreme Court review. (Remember that existing North Carolina case law tends to support searching an arrestee’s cell phone incident to the arrest, as I discussed here.)
The First Circuit Case. The first case is United States v. Wurie, __ F.3d __, 2013 WL 2129119 (1st Cir. May 17, 2013). Wurie arose when a Boston officer arrested the defendant for a hand-to-hand drug sale. Shortly after the arrest, officers opened the defendant’s cell phone and reviewed the call log. They noted a phone number in the call log was listed as “my house,” and used an online directory to match the phone number with a physical address. That led the officers to search the residence, where they found drugs and a gun. The defendant was charged in federal court with drug and firearms offenses and moved to suppress, arguing that the officers were not entitled to search his cell phone incident to his arrest, and that the search of the residence was the fruit of that poisonous tree. The district court judge denied the motion, the defendant was convicted, and he appealed.
The First Circuit reversed in a split decision, with two judges reasoning that “that the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee’s person, because the government has not convinced us that such a search is ever necessary to protect arresting officers or preserve destructible evidence.” As to the possibility of the destruction of evidence, the majority stated that any risk of such destruction could be avoided using techniques such as removing a phone’s battery, encasing it in a shielding enclosure, or copying the phone’s contents without examining them. Cell phones, under the majority’s rule, are a categorical exception to the search incident to arrest doctrine. A dissenting judge argued that settled law allows the police to search, incident to arrest, containers that are immediately associated with the arrestee, and that cell phones are just another type of container, subject to the same rules.
A divided, published opinion of a court of appeals is always a candidate for certiorari review, but what make Wurie an especially strong contender is what happened next. The defendant sought rehearing en banc, and the First Circuit denied it, with the Chief Judge writing a statement on denial of rehearing en banc arguing that the case met the standards for rehearing but that rehearing was inappropriate because “the preferable course is to speed this case to the Supreme Court for its consideration.” United States v. Wurie, 724 F.3d 255 (1st Cir. 2013) (denying rehearing en banc). The statement noted that “[t]he decision in this case creates a circuit split with respect to the validity of warrantless searches of cell phones incident to arrest,” that “[s]tate courts similarly are divided,” and that “[o]nly the Supreme Court can finally resolve these issues.” The original dissenting judge also filed a statement concluding that “this issue requires an authoritative answer from the Supreme Court.”
Wurie filed a petition for certiorari on August 15.
The California Case. The second case is People v. Riley, 2013 WL 475242 (Cal. Ct. App. 4th Dist. Feb. 8, 2013) (unpublished), a California attempted murder case. The trial court ruled that the defendant’s cell phone was properly searched incident to his arrest. Relying on People v. Diaz, 244 P.3d 501 (Cal. 2011) (ruling that the search of a cell phone incident to arrest is lawful so long as the phone is “immediately associated with [the arrestee’s] person”), an appellate court affirmed.
An unpublished opinion from an intermediate state appellate court is not normally a strong candidate for certiorari, but the defendant has sought certiorari review and there are two reasons to believe that he may get it. First, he is represented before the Court by Jeffrey Fisher of the Stanford Law School Supreme Court Litigation Clinic. Fisher is a former Supreme Court clerk and has argued 21 cases before the Court, so anything he files will be reviewed carefully. Second, the Court’s docket sheet for the case shows several amici have filed briefs at the certiorari stage. I have heard several experienced Supreme Court practitioners say that amicus support at that phase of the case can be critically important in helping capture the Court’s interest. The Court has requested a response to the petition, so the case is at least on the Court’s radar screen.
Stay tuned. I’ll keep you posted about any noteworthy development in these cases.