Searching Cell Phones Incident to Arrest: The Supreme Court Decides to Hear the Issue

By Nicholas Ulrich

On January 17, the Supreme Court granted certiorari on two cases involving the legality of police searches of an arrestee’s cell phone incident to arrest. This heavily litigated, yet still largely unresolved, issue will determine whether and when police can invade the privacy of a person’s cell phone based on probable cause that the person has committed an unrelated crime.

Normally, a warrant is required for a search unless it falls into a specific exception. One such exception, however, is the search incident to arrest exception, which allows police to search an arrestee’s person and things within his or her reach at the time of the arrest. Cell phones, however, may fall into a special category, because they are generally on a person but also contain a significant amount of private information. The circuits are split on whether the cell phone should be included within the search incident to arrest exception to the warrant requirement. A Supreme Court decision on this issue may seriously affect individual privacy because of the extensive amount of information collected and stored via modern smartphone technology, the fact that most people carry their phones on their persons, and the relatively low bar of probable cause for an arrest and thus a search.

The first case the court will hear is Riley v. California. That case involves an officer who stopped appellant Riley’s car for having expired registration tabs. The officer then discovered that Riley’s license was suspended and decided to impound the vehicle. While conducting a routine inventory search of the vehicle, the officer discovered firearms and decided to arrest Riley. During the search incident to arrest, the officer took possession of Riley’s smartphone and immediately, without obtaining a warrant, searched through the contacts. He discovered information suggesting that Riley belonged to the “Bloods” street gang. Officers later conducted another warrantless search of Riley’s cell phone at the station and discovered evidence that was ultimately used to convict him of a drive-by shooting. The trial court admitted the cell phone evidence, and the California Court of Appeals affirmed. The California Supreme Court denied review of the appellate decision.

The second case the court will hear is United States v. Wurie. In that case, an officer suspected that Wurie had conducted a drug deal in his car. Eventually, the police arrested him. Once he arrived at the station, the officers discovered his cell phone. The police used a phone number found by searching Wurie’s cell phone to determine where he lived. They ultimately searched his house and discovered drugs and firearms. The district court denied his motion to suppress the evidence found in the house, but the First Circuit reversed. The First Circuit’s reversal in Wurie created a circuit split on the issue of cell phone searches: the Fourth, Fifth, and Seventh circuits have accepted that the search incident to arrest exception to the general warrant requirement applies to cell phones.

The First Circuit also denied a rehearing of Wurie en banc, despite the fact that the case satisfies the requirement for such a hearing. A court will grant a rehearing en banc if a majority of the sitting judges in the circuit approve such a decision. While en banc rehearings are “not favored,” a circuit will generally grant a rehearing if either it is necessary to “secure or maintain uniformity of the court’s decisions,” or “the proceeding involves a question of exceptional importance.”

One way for a decision to involve a question of exceptional importance is if it conflicts with other circuits’ decisions on the same issue. Because Wurie created a circuit split, a rehearing en banc would have been appropriate. In addition, in denying the motion for the a rehearing en banc, two of the circuit judges intimated that they denied the motion because this is a question that the Supreme Court needs to decide. Perhaps the rehearing denial with this prompting finally persuaded the Supreme Court to grant certiorari on the question.

The Supreme Court may resolve this question in favor of personal privacy by creating a cell phone exception to the search incident to arrest exception, or, instead, they may reaffirm that age-old search incident to arrest exception in its entirety. Regardless, the cases should invite interesting arguments, and the Supreme Court will finally decide this controversial issue.