January 22, 2014
Considering that the vast majority of Americans carry a cell phone with them when moving about in public, a cell phone is likely among the personal effects seized by law enforcement during or after arrest.
Does this seizure, lawful though it may be, give police the authorization to search through the cell phone’s contents?
Courts have been grappling with this question for several years, with some answering this question in the negative, while others answering it in the affirmative (I covered one such ruling out of the Seventh Circuit almost two years ago).
Now, however, the Supreme Court has decided to weigh in on the issue: last Friday, the Court granted certiorari to two cases that both deal with this question – Riley v. California and U.S. v. Wurie. As the case titles would suggest, the first is a state level case (specifically, out of California), while the second is a federal case.
What isn’t apparent from the titles, though, is how each ruling came down on the question. Riley held that such cell phone searches are constitutional, while Wurie held otherwise. Here’s a quick rundown o the facts of each case.
Riley involved a man, David Riley, arrested after he was stopped for driving a car with expired license plates tabs and the officer discovered a pair of handguns inside the car’s engine compartment (Riley’s driver’s license was expired at the time, and it is apparently standard procedure to impound the cars of any such individuals stopped, and it is standard procedure to thoroughly inventory a car that is to be impounded).
Ninety minutes after Riley’s arrest, police searched through the contents of his cell phone, and discovered evidence placing him near the scene of a gang-related murder three weeks prior, and other evidence strongly suggesting his membership in the gang involved in the murder.
Riley was subsequently convicted for attempted murder and other gun-related charges, and the appeal followed. Citing California law, the appeals court found that the search of Riley’s cell phone fell into the category of a booking search, which allows the confiscation of any items that are “immediately associated” with the arrestee’s “person” when he or she was stopped. Thus, it was constitutional.
Wurie, by contrast, began with the alleged drug sale by Brima Wurie. After Wurie was arrested on suspicion of a crack cocaine sale in a convenience store parking lot, police confiscated his cell phone. Police questioned Wurie and asked him for his address. The police believed that Wurie was lying, though, and found a number on his cell phone labeled “My House.” They proceeded to look up the address associated with the phone number (through the White Pages website), and proceeded to the location. After obtaining a search warrant, the police found “among other things, 215 grams of crack cocaine, a firearm, ammunition, four bags of marijuana, drug paraphernalia, and $250 in cash.”
After Wurie’s conviction, the First Circuit Court of Appeals heard his appeal, and found that the search of the cell phone violated Wurie’s Fourth Amendment rights.
Specifically, the appeals court reviewed the Supreme Court’s history of rulings on the “search-incident-to-arrest doctrine,” and distilled the principle that the doctrine represents an exception to the general prohibition of warrantless searches and seizures imposed by the Fourth Amendment – and that it is not an “independent right held by law enforcement officers.”
In order to lawfully invoke this doctrine, the search must be for at least one of two purposes: either the search must be “potentially necessary to preserve destructible evidence,” or it is potentially necessary to protect the safety of the police officers at the scene.
The Fifth Circuit found that both Wurie and his cell phone were safely in police custody at the time of the search, so there was no risk to the safety to any police officers. In addition, the court found that there was no need to preserve destructible evidence. Thus, law enforcement couldn’t properly invoke this doctrine, and the search of the cell phone was unconstitutional.
The “preserving destructible evidence” piece could become important later, though, since the ruling I wrote about back in March 2012 specifically noted the possibility of remotely wiping the phone’s contents. However, the Wurie court noted three different methods that law enforcement could use to prevent such a possibility (one of them being simply turning the phone off or removing its battery).
Furthermore, and perhaps more importantly, the court interpreted the police’s lack of use of such evidence preservation methods as “the government’s acknowledgment that the possibility of remote wiping here was ‘remote’ indeed.”
These are the two sets of facts and the accompanying rulings that the Supreme Court has before it to begin its review of the issues presented.
How will the Court rule? Oral arguments will give us a clearer picture, but we’ll make a prediction before then to better lay out the issues as they relate to each individual justice.