Setting Stage for Supreme Court Review, First Circuit Categorically Bars Cellphone Data Searches Incident to Arrest, Contrary to Other Courts of Appeal

August 22, 2013Articles White Collar Defense & Compliance Blog

This space has previously mused about the difficulties facing courts in harmonizing Fourth Amendment principles, developed decades ago, with emerging technologies which confound their ready application today. We have discussed courts’ contortions over computer searches, as they struggle to apply search and seizure principles enunciated for physical file cabinets and storage areas, as seen in recent decisions of the Seventh Circuit and Ninth Circuit.

The current metaphysical battle field is over cellphone searches, as the mobile telephone has morphed from simple communications device to a portable computer. The Fourth Amendment doctrine of search-incident-to-arrest as an exception to the warrant requirement — allowing for a warrantless search of a defendant’s person at arrest — was first enunciated more than 40 years ago in Chimel v. California, 395 US 752 (1969), in which the Supreme Court articulated an exception for searches of the defendant’s clothing any immediately surrounding area where he might reach in order to grab a weapon or evidentiary item. What does that hoary concept mean when the “defendant’s person” now includes a pocket-held computer capable of storing millions of bits of data?

The First Circuit recently staked out a clear and unnuanced position on the question, ruling in the case of a warrantless police search of an arrestee’s cellphone, that the search-incident-to-arrest doctrine could never justify the seizure of data from the a cell phone on the defendant’s person. InUnited States v. Wurie, 2013 WL 2129119 (1st Cir., May 17, 2013), the defendant was arrested for distributing crack cocaine. One of the arresting officers noticed that his cell phone was repeatedly receiving calls from a number identified as “my house” on the caller ID screen on the front of the phone, observable in plain view. The officers opened the phone to look at its call log in order to identify the telephone number associated with “my house.” Having obtained that telephone number, officers determined from other sources the street address associated with that phone number, and went to the location. Armed with a search warrant, there they found drugs, guns, and cash, all used as evidence against Wurie. On appeal, Wurie argued that the search of his phone was illegal. The government’s response was that, because of the arrest-related exception, the phone, like any other item such as a wallet, pager, or address book carried by the defendant, could be thoroughly searched without a warrant.

They First Circuit disagreed. The court factually distinguished the modern smartphone from a person’s wallet, pager, or address book, noting the phones’ use as a veritable computer and one storing highly personal data. Acknowledging that the Supreme Court has never found the constitutionality of a search incident to arrest to turn on the kind of items seized or their capability of storing private information, the Court of Appeals focused instead on the intrusiveness of the search of a device like a modern cell phone as contrasted to searches of other, common items. The Supreme Court’s cases which elaborated on the rationale for the doctrinal exception have focused on the twin purposes of protecting the arresting officers and safeguarding evidence of the offense; searches of wallets, pagers, and address books are appropriate at the time of arrest because they are all potential repositories for destructible evidence and sometimes even weapons. The same cannot be said of a cell phone; arresting officers face no risk of harm from the cell phone and can readily take steps to assure that evidence available on the device cannot be destroyed by the defendant, including powering off the phone, putting it in a device which protects it from external electromagnetic radiation, or copying cell phones’ contents in order to preserve them. Under the Supreme Court’s articulated rationale, then, warrantless cell phone data searches incident to arrest, the First Circuit held, are categorically unlawful.

As the court noted, other courts of appeal have disagreed, with the Fourth and Seventh Circuits upholding warrantless cell phone data searches at the time of arrest. This circuit conflict, of course, tees up the question for the Supreme Court, and the Washington Post reported on August 19th that the Obama Administration has filed a certiorari petition in the First Circuit case, presenting the question for final resolution.