The following story is one I wrote, and which was originally published in the March 2014 edition of Upon Further Review, a publication of the Philadelphia Bar Association. Re-printed here with permission of the Philadelphia Bar Association. The original work can be viewed at https://uponfurtherreview.philadelphiabar.org/page/Article?articleID=62d4670c-0bd7-40e7-a7a7-d581fb2cfe37
SCOTUS to Hear Companion Cases Involving Cell Phone Searches Incident to Arrest
Brad V. Shuttleworth, Esq. on 03/18/2014
One of the first things we learn in law school is how slowly the law can trail industry and technology. Sometimes, the length of that trail can be astonishing. Take the case of a smartphone for example. Apple’s revolutionary smartphone, the iPhone, came out about eight years ago. Now it stands six generations deep. Even years before the iPhone’s premiere, Blackberry led the smartphone market, with devices capable of shooting photos and video, e-mailing, messaging, browsing the web, playing music and storing private data. Throughout this time, law enforcement officers across the country have been searching smartphones incident to arrest. In court, there has been little guidance on a law enforcement officer’s ability to dive deep into the mounds of data contained in a smartphone, once it is lawfully seized pursuant to an arrest. Finally, after years of waiting, the United States Supreme Court will hear arguments on April 29th in two cases on the ability of law enforcement officers to search the data contained within a cell phone upon a seizure incident to arrest. The two cases have markedly different facts, and they come from two jurisdictions.
The first case is Riley v. California (13-312). Riley was ultimately decided in the California Court of Appeals. The California Supreme Court declined review. The case was then taken to the United States Supreme Court by way of a Petition for Allowance of Appeal, which was granted.
In Riley, the defendant was convicted by jury trial of shooting at an occupied vehicle, attempted murder and assault with a semi-automatic firearm. About 20 days after a shooting occurred, police stopped the defendant in a car, and they learned he had been driving without a license. Because of him driving without a license, police were able to impound his car. While conducting an inventory search, they discovered illegally-possessed firearms. Upon arresting Riley for the guns, they seized his cell phone, which provided photographic and video evidence of gang affiliation, and evidence that the phone was used near the place of the shooting 20 days earlier, and it was used about 30 minutes near the location where police found Riley’s other car after the shooting.
The California Court of Appeals found that the search of the cell phone was permissible as a valid search incident to arrest, as it was “immediately associated” with his “person” when he was arrested. Because the cell phone was on Riley’s person when he was arrested, the police were justified in performing a full search incident to arrest, which are generally broad in scope for items found on a defendant’s person.
The second case is United States v. Wurie (13-212). Wurie was granted allowance of appeal out of the United State Court of Appeals for the First Circuit. The incident giving rise to the arrest in Wurie occurred in South Boston. Sergeant Detective Paul Murphy, while conducting surveillance, observed what he believed to be a drug transaction. After Sergeant Murphy stopped the buyer, the buyer admitted that he bought drugs from Wurie. Sergeant Murphy notified another police officer, who arrested Wurie after he parked his car. Once Wurie was transported to the police station, two cell phones, a set of keys, and a rather large amount of cash were taken from him. Before Wurie was booked, two officers noticed that one of his cell phones, a gray Verizon LG phone, was repeatedly receiving calls from a number identified as “my house” on the external caller ID screen on the face of the phone. This was visible in plain view. After about five minutes passed, officers opened the phone to look at Wurie’s call log. They then saw a photograph of a young woman holding a baby, which was set up as the phone’s “wallpaper”, or background image. The officers continued on by pressing another button on the phone, allowing them access to the phone’s call log, which showed the incoming calls from “my house”. They then pressed yet another button to determine the phone number associated with the “my house” caller ID reference. The officers then traced the phone number to an address on Silver Street in South Boston, not far from where Wurie parked his car just before he was arrested.
Officers proceeded to the address, armed with Wurie’s keys. One of the mailboxes at the address listed the names of Wurie and Cristal. Officers looked through the first-floor apartment window, and saw a black woman who looked like the woman whose picture appeared on the phone wallpaper. They then entered the apartment, without a warrant, to “freeze” it while they obtained a search warrant. They ultimately seized from the apartment, among other things, 215 grams of crack cocaine, a firearm, ammunition, four bags of marijuana, drug paraphernalia, and $250 in cash. Wurie was charged with possessing with intent to distribute cocaine base and with being a felon in possession of a firearm and ammunition. He filed a motion to suppress evidence, which the trial court denied.
The First Circuit reversed the denial of the suppression motion. After thoroughly discussing United States Supreme Court precedent, and opinions of other jurisdictions, it held that “warrantless cell phone data searches are categorically unlawful under the search-incident-to-arrest exception. . . .” (Emphasis in original). It noted that the government failed to demonstrate that a cell phone search under such circumstances is ever necessary to promote officer safety or prevent the destruction of evidence.
There have been no cases in Pennsylvania discussing the search of the data contained within a cell phone solely because of a search incident to arrest. It will be helpful if the United States Supreme Court were to rule on this case by the end of this term, because Pennsylvania is not the only jurisdiction where this issue has not yet been settled. Once the Supreme Court rules, in whichever way it rules, we will know at least the baseline protections afforded to individuals for searches in these circumstances under the Federal Constitution.