1st Circuit holds that cell phone searches incident to arrest violate the 4th Amendment

In United States v. Wurie, No. 11-1792 (1st Cir. 2013), the First Circuit held that the search of a cell phone incident to arrest categorically violates the Fourth Amendment. As a result, the court reversed the defendant's motion to suppress, vacated the conviction, and remanded the case.

While performing routine surveillance, a Boston police officer observed a man conducting what appeared to be a drug sale. The man was then stopped, and crack cocaine was found in his pocket. He was arrested, and upon arriving at the police station, two cell phones were confiscated from his person.

The phone soon thereafter received several calls, each displaying "my house" on the screen as the incoming caller. Police opened the call log and obtained the phone number for "my house." The number was entered into an online white pages directory, and officers then went to that location to "freeze" it while a search warrant was obtained. A large amount of drugs were seized from the home.

Before trial, the defendant moved to suppress the evidence obtained from his person and home, and the district court held that "[t]he search of Wurie's cell phone incident to his arrest was limited and reasonable." On appeal, the defendant reasserted his motion.

Having not yet dealt with the issue, the First Circuit extensively evaluated the potential effect of making cell phones searchable under the search incident to arrest exception. Here are a couple excerpts:

• [Data stored on a phone] is the kind of information one would previously have stored in one's home and that would have been off-limits to officers performing a search incident to arrest.
• Just as customs officers in the early colonies could use writs of assistance to rummage through homes and warehouses, without any showing of probable cause linked to a particular place or item sought, the government's proposed rule would give law enforcement automatic access to "a virtual warehouse" of an individual's "most intimate communications and photographs without probable cause" if the individual is subject to a custodial arrest, even for something as minor as a traffic violation.

As to whether the search was necessary to prevent destruction of evidence on the phone by remote wiping, the court discussed three methods for preserving the data and concluded:

Indeed, if there is a genuine threat of remote wiping or overwriting, we find it difficult to understand why the police do not routinely use these evidence preservation methods, rather than risking the loss of the evidence during the time it takes them to search through the phone. Perhaps the answer is in the government's acknowledgment that the possibility of remote wiping here was "remote" indeed.

Ultimately, the First found it necessary to create a uniform rule governing the search of cell phones incident to arrest, holding that "[a]llowing the police to search that data without a warrant any time they conduct a lawful arrest would, in our view, create 'a serious and recurring threat to the privacy of countless individuals.'"

The court did leave open the possibility for using the exigent circumstances exception in order to search a cell phone without a warrant, for example when there is a "compelling need to act quickly" such as to "locate a kidnapped child or to investigate a bombing plot or incident."

In a dissent, Judge Howard suggested a variety of reasons why the majority was incorrect, including that the caller from "my house" might have otherwise destroyed evidence in the home.