On Tuesday, April 29, the US Supreme Court will hear argument in the case of United States v. Wurie involving the search incident to arrest exception to the Fourth Amendment as it pertains to cell phones taken from the person of an arrestee.
Brima Wurie was arrested under suspicion of selling narcotics in South Boston. He was brought to the police station where officers removed a set of keys, two cell phones and $1,275 from his pockets. Prior to Wurie's booking, officers realized that one of the phones taken from him had been ringing. The name of the caller was displayed as "My house." Officers opened the phone in order to obtain the number associated with "My house." After obtaining the number and running it through an online white pages directory, officers went to the address. They entered the house to freeze the building and give themselves time to obtain a warrant. After the warrant was issued, officers searched the home and found 215 grams of cocaine and a firearm.
The US District Court for the District of Massachusetts denied a motion to suppress the evidence, finding the search of Wurie's cell phone reasonable under the search incident to arrest exception to the Fourth Amendment. Wurie appealed and the US Court of Appeals for the First Circuit reversed the lower court's holding and found that the evidence should have been suppressed. In doing so, the First Circuit held that warrantless searches of cell phones are categorically unreasonable under the Fourth Amendment. The government petitioned the US Supreme Court for certiorari, which was granted January 17, 2014.
Chimel v. California and the Search-Incident-to-Arrest Exception
The search-incident-to-arrest exception to the Fourth Amendment has been adjudicated many times in front of the Supreme Court and other lower courts. One of the most cited and relevant decisions is Chimel v. California. In deciding if a search incident to arrest was reasonable, the court articulated two criteria to make such a determination. A warrantless search would be reasonable if it was conducted (1) "to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction" or (2) to search "the area into which an arrestee might reach in order to grab a weapon or evidentiary items."
The court reiterated the importance of the Chimel factors some 40 years later in Arizona v. Gant. The court held a warrantless search of an arrestee's vehicle was unreasonable once the arrestee had been fully detained. Following the court's rationale in Chimel and Gant, an object will not meet the required justification to be a lawful search incident to arrest once it has been reduced to the exclusive control of officers and it is determined not to pose a threat to safety. Surely an officer can check to make sure the cell phone is not a stun gun as cell phone shaped stun guns can be purchased. Once the object is in the exclusive control of an officer and determined not to pose a threat, there is generally no potential for the destruction of evidence. Therefore, justification under Chimel will not be present.
A modern cell phone presents an interesting difficulty under the Chimel test because it can be remotely erased through applications such as Apple's "Find my iPhone." With the press of a few buttons from a remote location, an accomplice could erase a phone and destroy all evidence contained within. In the time it would take police to get a warrant, an accomplice could execute a previously arranged contingency plan to destroy the evidence on a phone.
Suppose Wurie had pre-arranged with the person associated with the number "My house" to call him every minute that he was not home on time. Further suppose that if he does not answer after three attempts, the orders would be to execute a remote wipe of the cell phone. The police would have no idea exigent circumstances existed until it was too late.
The government contends, and the dissent below agrees, that a cell phone as a class of object meets the Chimel requirements for warrantless searches because of the aforementioned threats of evidence loss. The First Circuit answers this concern by suggesting three possibilities to combat this. First, they suggest turning off the phone or removing its battery as a preventative measure against remote wiping. This may not work in all or even most instances because the "Find my iPhone" application can be set to erase the phone as soon as it is powered back on. Even if a warrant were obtained in the mean time, the information would be lost as soon as police try to re-power the phone.
Second, the court suggests placing the phone in a Faraday enclosure essentially a device designed to block incoming signals. This solution fails for the same reasons as suggestion one; as soon as the device is removed from the enclosure, it could be erased.
Third, the court suggests mirroring the phone to a computer so that if it is remotely wiped, the data will still be accessible. This seems possible, but it may entail actions that are commensurate to a search in that the information being copied would likely be visible on the screen of the computer. Further, the phone could be remotely wiped while this process is taking place.
A suggestion the court did not seem to consider is that the police simply put the phone into airplane mode. This would disable the incoming signal, breaking any connection "Find my iPhone" could make with the device. This appears to be the most effective means of preserving the device. There is an issue of when the phone is password protected. This will remain for the Court to solve.
The Fight Over a Bright-Line Rule
US v. Wurie holds particular significance in the modern world because of the amount of people with cell phones. Should the court rule that police are able to search cell phones incident to arrest, there must be limits placed on what data is accessible. Officers should not be able to go on a fishing expedition within the cell phone of a person simply because they were arrested. This unbridled discretion seems similar to the general warrants the founding fathers so adamantly rejected in the Fourth Amendment.
The question then becomes where the court should draw a line against the warrantless searches of cell phones incident to arrest. A bright-line rule categorically barring warrantless searches of cell phones, as imposed by the First Circuit, seems contrary to the analysis of what is reasonable. "The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case." The First Circuit held that Chimel justification must be present for every category of item searched. This would require that the government prove that all cell phone searches incident to arrest are reasonable.
Judge Posner, writing for the US Court of Appeals for the Seventh Circuit in US v. Flores-Lopez, provides some insight into a possible alternative to a bright-line rule. He writes, "[i]f police are entitled to open a pocket diary to copy the owner's address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, they should be entitled to read the address book in a cell phone." Such a balancing test seems reasonable, as it would curtail police discretion to fit with established case law.
Privacy interests of the person whose property is searched and police duty to prevent and solve crime are at the heart of Fourth Amendment cases. Warrantless searches incident to arrest bring this clash even more to the forefront. Ultimately, the court will weigh these conflicting interests in handing down a decision. The search incident to arrest exception to the Fourth Amendment has long been adjudicated in the American legal system. With US v. Wurie, this long history will gain another page.
Brent Nesbitt holds a B.A.from the University of Pittsburgh in History and English Literature. He is an Assistant Editor for JURIST's Forum Service. He will work as a judicial intern for the US District Court for the Western District of Pennsylvania in the Summer of 2014.
The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.
Suggested citation: Brent Nesbitt, US v. Wurie: The uncertain future of warrantless cell phone searches, JURIST - Dateline, Mar. 23, 2014, http://jurist.org/dateline/2014/03/brad-nesbitt-wurie-phone.php
This article was prepared for publication by Endia Vereen, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org