A Bright Line in a Blurry Landscape

The law is in a state of flux regarding the government's ability to search the contents of an arrestee's cell phone without a warrant. Should a higher standard apply given the breadth of information stored or one's expectation of privacy? Is it really that different from poking through the contents of a wallet? What if it's not password-protected?

The First Circuit recently parted ways with most other courts by announcing a very bright line rule in United States v. Wurie. The court decided that an officer's viewing of a suspect's call log after seeing "my house" calling constituted a search under the Fourth Amendment. (HT @slashdot) Without needing a password, the police looked up "my house" and matched it to a house where they later found Wurie's name on the mailbox. The police then obtained a warrant to search the property and eventually found crack, marijuana, ammunition, drug paraphernalia and more. The issue is whether the warrantless search of the cell phone for the "my house" number violated the Fourth Amendment.

Lawyer and Colonial Activist James Otis, Jr.
It's black letter law that "a warrantless search is per se unreasonable under the Fourth Amendment, unless one of 'a few specifically established and well-delineated exceptions' applies." (citations omitted) Here, the question is whether the search-incident-to-arrest (SITA) exception applies. The primary analysis revolves around Chimel v. California, in which the U.S. Supreme Court established that a SITA is justified when there is risk of officer harm or destruction of evidence. Subsequent cases have applied Chimel to find for or against application of SITA. (See chart below.)

The Wurie court relies on precedent and practicality: clear rules are necessary for officers who don't have the training, time or interest in splitting hairs, especially on the fly in wildly varying factual circumstances. TL;DR, the court crafts a bright line rule:
"We believe that warrantless cell phone data searches are categorically unlawful under the search- incident-to-arrest exception, given the government's failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence." (underlining in original)
The court, properly in my opinion, distinguishes the usual SITA characters like cigarette packs, wallets, address books and pagers from a modern cellphone, aka a computer. Interestingly, fn. 8 takes notice that, "we believe that it may soon be impossible for an officer to avoid accessing [information stored in the cloud] during the search of a cell phone or other electronic device, which could have additional privacy implications." The court spends more time on the nature of cell phone data, stating, "It is the kind of information one would previously have stored in one's home and that would have been off-limits to officers performing a search incident to arrest."

Given the way the court framed the issue, it found that the government failed to carry its burden to show that a warrantless search of cell phone data can ever fit within Chimel. Inspecting a cell phone to make sure it's not a disguised stun gun isn't the same as digging into its contents. Regarding evidentiary preservation, the court doesn't buy the government's arguments that either data could be remotely wiped, or (as the dissent emphasizes) that the failure of Wurie to answer might alert people at "my house" that he was in trouble, potentially prompting them to destroy evidence. The court says that the officers could have turned off the phone (which also wouldn't affect cloud storage, though); put it into a Faraday enclosure, or mirror the contents and then get a warrant. The court concludes, "Weighed against the significant privacy implications inherent in cell phone data searches, we view such a slight and truly theoretical risk of evidence destruction as insufficient."

The big split that might push this case toward the Supreme Court is with the Seventh Circuit's decision in United States v. Flores-Lopez, where although the risk of evidentiary destruction was slight compared to the privacy invasion, a minimal intrusion was justified. In addition, other Seventh Circuit precedent also supported a "minimally invasive" warrantless search. Still, Supreme Court preference and practical implementation called for a bright-line rule in the Wurie majority's view. "A rule based on particular instances in which the police do not take full advantage of the unlimited potential presented by cell phone data searches would prove impotent in those cases in which they choose to exploit that potential." The call from "my house" could have just as easily been Wurie's housemate asking about dinner plans. Wurie also was found with more than one cell phone, an interesting fact the court doesn't discuss. Even if it called a few times, that's not uncommon. What if it were "Lucky's Pizza" or "Fast Eddie"? Could the police assume it were an accomplice? Let fortune favor freedom, not fishing expeditions.

The court doesn't close the door completely, noting that other exceptions the government didn't invoke might apply. For example, the exigent circumstances exception in a case where a phone might contain information about a kidnapping or unfolding bombing incident. They also reject the government's claim of the good faith exception, which was ripe for review below but first argued in a footnote on appeal. On the whole and as a matter of policy, this seems like the right outcome. A bright line rule is necessary here given the unlimited scope of potential privacy harms. As the majority notes, James Otis would be proud.

Selection of cases mentioned in United States v. Wurie; quotations and paraphrasing below from the Wurie majority's description unless noted
Case Summary
Supreme Court Decisions
Chimel v. California, 395 U.S. 752 (1969) "[W]arrantless search of the defendant's entire house was not justified by the fact that it occurred as part of his valid arrest." Established underlying SITA justifications of officer safety and evidence preservation
United States v. Robinson, 414 U.S. 218 (1973) SITA applied to searches of the person, irregular cigarette pack found during pat down contained heroin; full search of the person incident to lawful arrest ok; broadly approved SITA during a lawful arrest (Robinson at 235)
United States v. Edwards, 415 U.S. 800 (1974) Paint chips found on suspect's clothing after he was in lawful custody potentially tying him to the burglary; SITA ok
United States v. Chadwick, 433 U.S. 1 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565 (1991) Feds retained control of footlocker seized after defendants were arrested when they loaded it into the trunk of a car, agents opened it an hour and a half later and found pot; no SITA exception, no exigency, safety or other risk
Arizona v. Gant, 556 U.S. 332 (2009) search of arrestee's vehicle (which also invokes a host of other rules); reiterated Chimel rationales; a search of a vehicle incident to arrest is lawful "when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (Gant at 343)
Missouri v. McNeely, 133 S. Ct. 1552 (2013)) "rejected a per se rule for warrantless blood tests of drunk drivers" and required a fact-specific analysis under the exigent circumstances exception; distinguished SITA at 1559 n.3
Warrantless search ok
United States v. Finley, 477 F.3d 250, 254 (5th Cir. 2007) reliance on Robinson and Edwards, SITA ok due to need to preserve evidence on cell phone; looking through arrestee's call records and text messages
United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) reliance on Robinson and Edwards, SITA ok due to need to preserve evidence on cell phone
United States v. Quintana, 594 F. Supp. 2d 1291, 1295-96 (M.D. Fl. 2009) photographs on cell phone
People v. Diaz, 244 P.3d 501 (Cal. 2011) "a cell phone can be freely searched incident to a defendant's lawful arrest, with no justification beyond the fact of the arrest itself"
People v. Nottoli, 130 Cal. Rptr. 3d 884, 894 (Cal. Ct. App. 2011) gun, "tooters," and Blackberry found during vehicle search of person arrested for being under the influence, unlocked phone's wallpaper showed image of masked, smocked person holding two rifles; concerned about terrorism or other crimes, police browsed texts related to marijuana cultivation, photos of guns and emails showing purchase of illegal ammo; very detailed discussion of Supreme Ct., California, other state cases, esp. vehicle-specific. SITA of cellphone ok. (my notes)
Commonwealth v. Phifer, 979 N.E.2d 210, 213-16 (Mass. 2012) reliance on Robinson and Edwards, SITA ok due to need to preserve evidence on cell phone
United States v. Flores- Lopez, 670 F.3d 803, 804 (7th Cir. 2012) obtained the arrestee's cell phone number from the phone; "evidence preservation concerns outweighed the invasion of privacy at issue in that case, because the search was minimally invasive"; 7th Circuit precedent supporting "minimally invasive" searches (Concepcion)
Warrantless search not ok
United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007) "a cell phone should be viewed not as an item immediately associated with the person under Robinson and Edwards but as a possession within an arrestee's immediate control under Chadwick, which cannot be searched once the phone comes into the exclusive control of the police, absent exigent circumstances"
State v. Smith, 920 N.E.2d 949 (Ohio 2009) cell phones different in nature from other closed containers due to higher expectation of privacy in contents so a warrant is required
Smallwood v. State, __ So. 3d __, 2013 WL 1830961 (Fla. May 2, 2013) relying on Gant to find that once the phone has been removed from the arrestee's person, ability to use it as a weapon or destroy evidence contained therein foreclosed
United States v. Wurie See above!

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