Cell Phone Search Incident to Arrest Coming to a Supreme Court Near You

by Mark Wilson

The Justice Department has filed a petition for a writ of certiorari in the Supreme Court, arguing that police should be able to search the contents of the cell phones of arrestees as part of a valid search incident to arrest.

This brings the federal government into a conflict that has been going on for some years now, as cell phones have become ubiquitous. Different states have different rules, and so do different federal circuits. Some states’ rules are judicially prescribed, while others are legislative.

What a country!

United States v. Wurie, the case at issue, begins like this: an officer spotted someone making what appeared to be a drug sale from his car. After the transaction was complete, the driver left and police arrested the buyer. The buyer told the police that he had purchased the drugs from the driver of the car, a crack dealer in South Boston. Police followed the driver, then arrested him. At the police station, they confiscated his keys, a significant amount of cash, and two older flip-style cell phones. On one of the cell phones, there were repeated calls from a contact labeled “my house.” Police found out that the number associated with “my house” was an address in South Boston close to where the defendant parked his car. They drove to the house and saw a mailbox with the defendant’s name on it. Police then obtained a search warrant and found drugs, cash, and guns inside.

The legal theory on which the government hangs it hat is the search incident to arrest (SIA) doctrine. A valid arrest allows an officer to conduct a warrantless search of the arrestee’s clothing and anything associated with the arrestee or within the arrestee’s immediate control. The purposes of this search are: (1) officer protection, to make sure the arrestee doesn’t have anything dangerous on his person; and (2) evidence preservation, to make sure the arrestee doesn’t destroy evidence within his control.

To be sure, if the Supreme Court does take up Wurie, there will be a lot of talk about the reasoning behind SIA. In its petition, the government makes a deceptively simple argument: “Look, Supreme Court, in prior cases dealing with SIA, you said the police can search anything on the arrestee’s person. A phone is anything on the arrestee’s person. So therefore you can search it. Seacrest out.”

Wurie, though, will be making the same arguments made by defendants in prior state-level cell phone search cases, including People v. Diaz (California), State v. Smith (Ohio), and Hawkins v. State (Georgia). The argument is this: “Supreme Court, back when you decided all those SIA cases, we were talking about wallets, purses, and cigarette packs. Those can only hold a finite amount of stuff. But a cell phone can store way more stuff; therefore, there’s too great a risk of an officer going on a treasure hunt on a cell phone. Therefore, you can’t treat a cell phone like a wallet just because it’s the same physical size and is on the arrestee’s person.”

In Smith, the Ohio Supreme Court held that a cell phone was unique when it came to SIA and couldn’t be searched absent a separate warrant. In Diaz, the California Supreme Court basically punted on the issue because California’s Fourth Amendment case law comes from the U.S. Supreme Court, and since the U.S. Supreme Court hasn’t given a special exemption to cell phones, California didn’t, either. In Hawkins, the Court of Appeals of Georgia held that police could examine some, but not all, of the files on a cell phone, where the scope is limited to files that might reasonably contain the object of the search.

There’s also a federal circuit split. In United States v. Finley, the Fifth Circuit characterized a cell phone as no different from any other container on an arrestee’s person. Now, with Wurie, we have the First Circuit saying something else. Because there’s a circuit split, the Supreme Court has little choice but to take up the issue.

The government has an uphill battle when it makes the “just keep doing what you’ve been doing” argument. One of the major reasons why SIA exists is to prevent spoliation of evidence. Why can’t the police just take the cell phone and search it later? The government contends that there’s a possibility the phone could be remotely erased, but that’s not a terribly realistic possibility. As the First Circuit pointed out, the police could take the battery out. Or put the phone in a Faraday cage, where it would be shielded from electromagnetic waves. And police don’t have to take that much time when searching a phone, either; the Cellebrite UFED is a device police departments use to extract the contents of a cell phone in minutes. The police could seize the phone without searching it and have ample time to get a warrant. Once the phone is away from the arrestee’s immediate control, the exigency that gives rise to the SIA (fear of spoliation of evidence) vanishes. The government will have to address this problem.

But it doesn’t end there, of course. As I note in my recently published law review article, things get dicier still when police are accessing data that are not stored on the phone but is instead stored with a remote computing service, like Google or Apple. That issue isn’t before the Court now, but it will be in a few years.

The status quo argument is both a blessing and a curse. It’s an argument that succeeds only if the justices accept the premise; i.e., that a cell phone is no different from a wallet or a pack of cigarettes. This means that they’ll have to address why a cell phone is the same as a wallet and a pack of cigarettes, which—given the storage capacity of a wallet compared to that of a cell phone—will be an unenviable task. The majority/concurrence split in United States v. Jones, the recent GPS-tracking case, suggests that the Justices are prepared to engage with the substance of the technology, rather than relying on the old tried-and-true (and increasingly threadbare) method of analogizing the technology to something found at common law. With Wurie, or any other cell phone search case, there’s actually the possibility of a meaningful technology-centered decision.

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