UPDATED Friday 12:11 p.m. The constitutional issue of police authority to examine the contents of cellphones belonging to people they arrest has now reached the Supreme Court. In a petition filed Tuesday, in the case of Riley v. California (docket 12-132), the sole issue is the validity of warrantless searches of such devices. The petition provides a full recital of the depth of the conflict now among lower courts on the question. (DISCLOSURE: An attorney with the firm of Goldstein & Russell, who also writes for this blog, is involved in this case. The author of this post and earlier posts on this controversy operates independently of the law firm.)

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UPDATED Tuesday 7:06 p.m. In another ruling dealing with cellphone users’ privacy, the Fifth Circuit Court in a two-to-one ruling on Tuesday decided that the federal government does not need a court-approved search warrant to require cellphone service companies to turn over data that tracks the locations where a user made calls on a cellphone. The ruling came in a case titled “In re Application of the U.S. for Historical Cell Site Data” (Circuit docket 11-20884). It overturned a decision by the district court, which had held that the relaxed standard for government access to such tracking data under the Stored Communications Act violates the Constitution’s Fourth Amendment.

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With two judges urging that the issue be moved rapidly to the Supreme Court, the First Circuit Court has refused to reconsider a ruling that police must obtain a warrant before they search the contents of cellphones belonging to people whom they arrest. The Justice Department had made a strong plea for rehearing, noting the deep split among lower federal and state courts. (Monday’s order denying rehearing en banc is here; the Justice Department plea for rehearing is here, with the Circuit and District Court decisions attached.)

In a two-to-one ruling on May 17, in the case of Wurie v. United States (Circuit docket 11-1792), a First Circuit panel majority created a “bright-line rule” that the Fourth Amendment requires police to obtain a warrant before they engage an arrested person’s cellphone to find out what information it contains. The decision overturned a drug conviction of Brima Wurie, a Boston man who was found to be a drug dealer. Much of the evidence against him grew out of a search of his home, to which police had been led by what they found on his cellphone’s database.

Although the Supreme Court has previously refused to hear test cases on such police searches, the split among lower courts has widened, enhancing the chances that the Supreme Court would agree to take on the issue for decision. The fact that the federal government seems likely to be pursuing an appeal in the Wurie case could add to the prospects for review.

The arguments that government lawyers had made in seeking rehearing in the First Circuit were a strong indication that this case will be appealed. The Circuit panel majority’s “categorical bar,” the government petition argued, “will impede the investigation and prosecution of numerous criminal offenses. The rapid development of new communication and computing technologies ensures that the legal issues presented in this case will recur in future cases, and the majority’s decision provides scant guidance to law-enforcement officers and courts about what other items seized from an arrestee’s person may be searched incident to a lawful arrest.”

The government petition relied in part upon the Supreme Court’s recent decision in Maryland v. King, allowing police to search the DNA of any individual arrested for a serious crime — a technique that can often allow officers to solve unsolved “cold cases.”

The First Circuit ruling is in direct conflict with rulings by three other federal appeals courts, and with decisions of state courts — including the highest state court in Massachusetts (the Supreme Judicial Court), which is itself in the First Circuit’s geographic area. Federal and state courts have the authority to issue differing rulings on the Constitution’s meaning.

In the panel decision, the majority said that it was necessary at this point in the development of electronic technology for it to come up with a flat rule, admitting no exceptions to the warrant requirement. “The government,” it said, “has not convinced us that such a search [without a warrant] is ever necessary to protect arresting officers or preserve destructible evidence.”

However, the majority said that “we may have to revisit this issue in the years to come, if further changes in technology cause warrantless cellphone data searches to become necessary” under prior Supreme Court rulings dealing with the power of police to make searches as part of an initial arrest procedure.

In addition, the majority conceded that some warrantless cellphone searches might be justified under the “exigent circumstances” exception to the Fourth Amendment’s warrant requirement — such as a situation where a cellphone is believed to contain evidence necessary to locate a kidnapped child or to investigate a bombing plot or incident.

The majority decision was written by Circuit Judge Norman H. Stahl, and was joined by Circuit Judge Kermit V. Lipez. Circuit Judge Jeffrey R. Howard dissented, arguing that cellphone searches should be judged on a case-by-case basis.

Less than two weeks after the government sought rehearing en banc, the Circuit Court denied the plea, with no noted dissents. Chief Judge Sandra L. Lynch said she was voting to deny rehearing “because I think the preferable course is to speed this case to the Supreme Court for its consideration.” Circuit Judge Howard — the dissenter in the panel ruling — said much the same thing, commenting that he welcomed “speedy resolution from the Supreme Court,” and saying that he saw no reason to delay by rehearing the issue at the appellate level.

Recommended Citation: Lyle Denniston, Cellphone privacy case on way to Court? (FURTHER UPDATE), SCOTUSblog (Jul. 30, 2013, 1:18 PM), https://www.scotusblog.com/2013/07/cellphone-privacy-case-on-way-to-court/