Fourth Amendment - Search and Seizure - Searching Cell Phones Incident to Arrest

Harvard Law Review, November 2014 | Go to article overview

Fourth Amendment - Search and Seizure - Searching Cell Phones Incident to Arrest


To enforce the Fourth Amendment's prohibition on unreasonable searches, the Supreme Court has traditionally prohibited warrantless searches "subject only to a few specifically established and well-delineated exceptions." (1) However, the Court has in recent years increasingly broadened these exceptions to the mounting concern of privacy advocates. (2) Last Term, in Riley v. California, (3) the Court ostensibly broke from this trend when it examined whether one exception--searches incident to custodial arrest--applied to the digital contents of cell phones. After weighing the government's minimal interests in these searches against the unique privacy interests at stake, the Court declined to extend the search-incident-to-arrest exception and held instead "that officers must generally secure a warrant before conducting such a search." (4) Although privacy advocates applauded Riley for endorsing a rule that protects digital privacy, the Riley Court relied unnecessarily on a reasonableness balancing test borrowed from other recent Fourth Amendment cases. In doing so, it signaled the continued rise of a Fourth Amendment mode of analysis that may not protect privacy as much in the future.

In Riley, the Court considered two cases presenting "a common question." (5) In the first case, a San Diego police officer arrested David Riley after discovering firearms stashed in a sock under his car's hood. (6) While searching Riley incident to his arrest, an officer found evidence of Riley's association with the "Bloods" street gang. (7) Suspicions aroused, the police seized and searched Riley's smart phone without a warrant, uncovering further evidence of gang ties. (8) They also discovered records that placed Riley's phone at a shooting three weeks earlier. (9) The trial court judge denied a motion to suppress after finding that the search fell within the scope of the search-incident-to-arrest exception. (10) Riley was convicted of assault with a semiautomatic firearm, shooting at an occupied vehicle, and attempted murder. (11)

The California Court of Appeal affirmed. In two paragraphs, Judge McDonald disposed of Riley's cell phone search claims on the basis of the California Supreme Court's decision in People v. Diaz, (12) which held that "a warrantless search of the text message folder of a cell phone" taken from a person during his arrest was constitutional under the search-incident-to-arrest exception. (13) The Riley panel agreed with the trial court that Diaz controlled. (14)

Over half a decade earlier and 2,500 miles away, Brima Wurie was arrested shortly after consummating a drug deal outside a "Lil Peach" convenience store. (15) After taking Wurie's cell phone, officers observed several missed calls from "my house." (16) Without a warrant, the officers flipped the phone open and jotted down the caller's number. (17) After tracking the number to an apartment, the officers executed a search warrant and found a drug dealer's bonanza: the "hidden mother cache" included drugs, a gun, and cash. (18) Wurie was charged with distribution of crack cocaine, possession of crack cocaine with intent to distribute, and felony possession of a firearm and ammunition. (19) After his motion to suppress was denied because the cell phone search occurred incident to his arrest, Wurie was convicted on all counts. (20)

The First Circuit reversed the denial of Wurie's motion to suppress and vacated his conviction. (21) Writing for a divided panel, Judge Stahl (22) held that the digital contents of a cell phone cannot be searched incident to arrest. (23) He began by examining the rationales for the exception, which the Court in Chimel v. California (24) had established as protecting officers from dangerous weapons and preventing the destruction of evidence. (25) Judge Stahl reasoned that the case "turn[ed] on whether the government can demonstrate that warrantless cell phone searches, as a category, fall within the boundaries laid out in Chimel. …

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