Does the Fourth Amendment require the police to obtain a warrant before searching an arrestee’s cellphone call log?
Boston police officers arrested Brima Wurie in 2007 for distributing crack cocaine. Among the items confiscated from Wurie was his cell phone, which rang repeatedly while he was detained. Without obtaining a warrant, officers looked through the phone’s call log, and with that information, determined the address of a residence where they found drugs, a firearm, and ammunition. At his criminal trial, the federal district court denied Wurie’s motion to suppress the evidence obtained as a result of the police’s warrantless search of his cellular phone. The court found Wurie guilty of possession of narcotics with intent to distribute, distributing cocaine base, and being a felon in possession of a firearm and ammunition. The First Circuit reversed the district court’s denial and vacated Wurie’s conviction, holding that the Fourth Amendment requires the police to obtain a warrant before searching an arrestee’s cell phone. The Supreme Court’s ruling in this case will help shape the contours of the Fourth Amendment’s protections against unreasonable searches and seizures in light of new technologies.
Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.
On September 5, 2007, Boston police officers spotted an apparent drug deal inside Brima Wurie’s car, a Nissan Altima. See United States v. Wurie, 728 F.3d 1, 1 (1st Cir. 2013). Upon stopping Fred Wade, the man identified with the alleged drug sale, police discovered two bags of crack cocaine in his pocket. See id. Wade told the officers that he had purchased the drugs from “B,” the man in the Altima, and that “B” lived in South Boston and sold crack cocaine. See id. at 1–2.
Shortly thereafter, police arrested Wurie for distributing crack cocaine and brought him to the police station. See id. at 2. Among the items confiscated from Wurie were two cellular phones; officers noticed that one of the phones received numerous calls from a number labeled “my house,” visible from the phone’s exterior. See id.
Officers opened the phone and saw a photograph, set as the phone’s wallpaper, of a young black woman and a baby. See id. The officers then looked at the phone’s call log and determined the number labeled “my house.” See id. After consulting a white pages directory, the police identified the number as belonging to an address in South Boston, associated with the name Manny Cristal. See id.
Under interrogation, Wurie claimed that he lived in Dorchester, not in South Boston, and denied that he had sold crack cocaine. See id. Suspecting that Wurie was lying about his address and that he had drugs in his home, the police visited the South Boston address, where a mailbox listed the names Wurie and Cristal. See id. The police also saw at the residence a woman and a baby who resembled the figures in Wurie’s phone wallpaper. See id.
After obtaining a search warrant, the police found and seized 215 grams of crack cocaine, four bags of marijuana, drug paraphernalia, cash, a firearm, and ammunition. See id. Wurie was later charged with possession with intent to distribute, distributing cocaine base, and being a felon in possession of a firearm and ammunition. See id.
Neither Wurie nor the United States disputed the relevant facts, and they agreed that an evidentiary hearing was unnecessary. See id. However, Wurie moved to suppress the evidence that was obtained from the warrantless search of his phone. See id. The district court denied the motion, and the jury found Wurie guilty of all three counts. See id. The court sentenced Wurie to 262 months in prison. See id.
On appeal, the First Circuit Court of Appeals considered whether searching an arrested person’s cellular phone falls under the search-incident-to-arrest exemption from the Fourth Amendment’s protection against warrantless searches. See id. at 3. The Court of Appeals noted that information stored on cellular phones is of a kind otherwise off-limits to police searches incident to an arrest. See id. at 8.
The Court of Appeals distinguished the circumstances in Wurie’s case from the purposes of the search-incident-to-arrest exemption—namely, to protect police officers or to preserve evidence from destruction. See id. at 10. Accordingly, the Court of Appeals reversed the district court’s denial of the motion to suppress and vacated his conviction. See id. at 14.
The Supreme Court granted certiorari to determine whether the Fourth Amendment allows the police to search, without a warrant, the call log of a cellular phone found on a lawfully arrested person. See Brief for Petitioner, United States at I.
This case presents the Supreme Court with the opportunity to review the scope of Fourth Amendment protection against warrantless police searches incident to an arrest. The United States argues that the police had the authority to search, without a warrant, the cell phone found on Wurie when he was lawfully arrested. See Brief for Petitioner, United States at 55. Wurie insists that he had a reasonable expectation of privacy regarding the information on his personal effect. See Brief for Respondent, Wurie at 9–10. The Court’s ruling in this case, in tandem with a similar case called California v. Riley, implicates an ongoing debate about how to properly reconcile the Fourth Amendment’s privacy protections with evolving information technologies.
THE PURPOSE OF SEARCHES INCIDENT TO ARREST
The United States invokes two separate interests of law enforcement that may justify police searches incident to an arrest. First, the United States argues that police have an interest in investigating, preventing, and punishing crime. See Brief for Petitioner at 14. This interest, according to the United States, outweighs the individual’s diminished expectation of privacy at the time of a lawful arrest. See id. The United States contends that this rationale underlies the police’s authority to search the persons of arrested individuals. See id. at 13–14. Secondly, the United States maintains that the safety of police officers and the preservation of destructible evidence justify searching the areas within immediate control of arrestees. See id. at 17.
Charles MacLean and Adam Lamparello, law professors writing as amici curiae in support of neither party, argue that searches incident to an arrest ought to comport with the purposes of police safety or evidence preservation. See Brief of Amici Curiae, Professors Charles E. MacLean and Adam Lamparello, in Support of Neither Party at 14. But in this particular case, the professors dispute that a cellular phone could pose a safety threat—as a weapon can—to justify a warrantless intrusion. See id. at 14–15. Moreover, various professors of criminal law propose that storing seized phones in Faraday bags, or even aluminum wrapping, may easily and inexpensively prevent the remote wiping of cellular data, thus removing the pressing need for police to search cellular phones without first obtaining a warrant. See Brief of Amici Curiae, Criminal Law Professors, in Support of Respondent at 9–12.
The United States counters that the limits of searching the areas around an arrestee do not also limit searching items found on the persons of arrestees. See Brief for Petitioner at 17. This distinction, according to the United States, follows from the police’s traditional, plenary authority to search arrestees’ persons. See id. at 20. Such authority, in the United States’ view, serves the general interest of law enforcement in gathering criminal evidence. See id. More importantly, the United States claims that limiting the scope of searchable items, and making police rely on a case-by-case determination, may impose a heavy burden on law enforcement working in the field. See id. at 27.
To the contrary, Professors MacLean and Lamparello contend that bodily privacy is different from informational privacy. See Brief of Amici Curiae, Professors Charles E. MacLean and Adam Lamparello at 23. Accordingly, the professors argue that an individual’s loss of the former, such as during an arrest, does not necessarily imply a loss of the latter. See id. To permit such an intrusion, the professors claim, would evoke a general warrant. See id. at 18. Likewise, the Constitutional Accountability Center cautions that a broad scope of police searching may violate the commitment to particularized warrants that the Framers enshrined in the Fourth Amendment. See Brief of Amicus Curiae Constitutional Accountability Center, in Support of Respondent at 17.
THE INTERSECTION OF PRIVACY, CRIME, AND TECHNOLOGY
The United States insists that searching cellular phones is an invaluable tool for law enforcement. See Brief for Petitioner at 31. Because cellular phones now occupy an important role in the commission of crime, the United States argues that police have an interest in searching phones to investigate and disrupt criminal activity. See id. at 30. Moreover, a phone search may help to identify an arrestee. See id. at 32. The United States warns that restricting the police from searching cellular phones may handicap law enforcement efforts when facing technologically advanced criminals. See id.
The Center for Democracy & Technology and the Electronic Frontier Foundation counter that cellular phones can store vast amounts of sensitive, personal information. See Brief of Amici Curiae Center for Democracy & Technology and Electronic Frontier Foundation, in Support of Respondent at 9. New developments in technology, according to these organizations, distinguish today’s privacy concerns from those of the past, if only by sheer volume. See id. at 5. These organizations warn that intrusions into cellular phone data may now jeopardize the very same privacy interests that the Fourth Amendment traditionally protected. See id. at 16. The National Press Photographers Association and other media organizations add that because cellular phones are important tools of expression, the privacy interests jeopardized by warrantless searches also implicate the right to free speech and the right against self-incrimination. See Brief of Amici Curiae National Press Photographers Association et al., in Support of Respondent at 7.
Professor Erwin Chemerinsky observes that this case may give the Court the opportunity to update its Fourth Amendment jurisprudence. See Erwin Chemerinsky, Is It Time to Go High-Tech on the Fourth Amendment?, ABA Journal, Feb. 4, 2014. In a previous privacy case, Chemerinsky notes, the Court relied on the old common law concept of trespass to determine whether a Fourth Amendment violation occurred. See id. Chemerinsky argues that such doctrines do not apply to the modern concern of informational privacy, and suggests that the Court use this case to let the Fourth Amendment keep pace with new technology. See id.
The Supreme Court of the United States must determine whether the Fourth Amendment prohibits police officers from conducting a warrantless search of a cellphone found on a criminal defendant’s person. Respondent Wurie argues that the government conducted an impermissible warrantless search of his cell phone subsequent to his arrest, and as the First Circuit Court of Appeals held, searching the information in his cell phone is not justified under the limited exceptions to the Fourth Amendment. See Brief for Respondent, Wurie at 44. The United States, however, argues that the judgment of the court of appeals should be reversed, claiming that the warrantless search of a cellphone seized from Wurie’s person is constitutional. See Brief for Petitioner, United States at 12.
THE WARRANTLESS SEARCH OF ITEMS FOUND ON AN ARRESTEE’S PERSON
The United States maintains that the search-incident-to-arrest doctrine as dictated by the Supreme Court in United States v. Robinson constitutes an exception to the Fourth Amendment’s general warrant requirement for a search. See Brief for Petitioner at 13. Furthermore, the United States maintains, the Robinson standard controls here, and establishes that a warrantless search of items found on an arrestee’s person is “a reasonable” search. See id. (quoting United States v. Robinson, 414 U.S. 217, 235 (1973). The United States thus maintains that under the Robinson standard, the search of respondent Wurie’s cellphone was constitutional because the cellphone was on Wurie’s person. See id.
Wurie argues that the United States misreads Robinson, and claims that Robinson stands for the proposition that the search-incident-to-arrest exception to the warrant requirement is only justified under concerns of either officer safety or the prevention of the destruction of evidence. See Brief for Respondent at 18, 19. Wurie maintains that because the cellphone found on him was not a weapon, See id. at 29-30, nor were its contents in immediate danger of being destroyed, See id. at 31, the Supreme Court should affirm the lower decision. See id. at 44.
The United States relies on two separate authorities pertaining to a warrantless search in connection with an arrest established by Robinson. See Brief for Petitioner at 13. The United States claims that in the first situation, the police have full authority to search the arrestee’s person, and in the second, the police have a restricted authority to search the immediate area around the arrestee. See id.The United States continues, claiming that this longstanding exception stems from law enforcement’s interest in investigating crime and gathering evidence, which outweighs an arrestee’s diminished expectation of privacy. See id.at 14-15. Thus, the United States claims that, because in Robinson where a police officer found a crumpled cigarette packet containing heroin during a lawful arrest and the Court held that the warrantless search was lawful, here the search of Wurie’s cellphone was lawful. See id.
Wurie claims that the justification for the limited search-incident-to-arrest of an arrestee’s person exception in the context of a traffic arrest is based on special circumstances where an officer has reasonable grounds to believe that the arrestee is armed and dangerous. See Brief for Respondent at 16-17. Further, Wurie contends, when an officer must take a motor vehicle regulation violator into custody, “a limited frisk of the suspect’s outer clothing in order to remove any weapons the suspect may have in his possession” is permissible. See id. at 17. Wurie argues that while his reduced expectation of privacy may have justified searching his person and seizing his cell phone to prevent potential destruction of evidence, the limited exceptions provided by Robinson do not justify a warrantless search of the personal and private information on his cell phone. See id.at 28.
The United States also notes that the Robinson Court held that officers may search the premises of arrest without a warrant, so long as the search remains reasonable in scope. See id.at 16. The United States notes that the search-incident-to-arrest doctrine extends beyond the person of the arrestee, but is limited to the area around the arrestee’s immediate control, or his reaching distance under the ruling in Chimel v. California. See Brief for Petitioner at 43.The United States concedes that what constitutes reasonable scope is the subject of some debate, but nonetheless maintains that a similar situation arose in Robinson, which should control here. See id. at 17. Nonetheless, the United States maintains that even if the Court considers the narrower justifications for warrantless searches of the area around the arrestee in Chimel, the Court should rule that the search of Wurie’s cell phone was permissible. See id. at 33. The United States supports this contention by claiming that Chimel concerns – preventing the destruction or concealment of evidence and protecting officer safety – apply with stronger force than searches of other objects that the court has previously deemed permissible under the search-incident-to-arrest doctrine. See id. at 34.
Wurie argues that the United States neglects the fact that Robinson adhered to Chimel’s concerns over officer safety and the destruction of evidence and thus the Court never suggested that these justifications are not required for searches of the person. See Brief for Respondent at 18-19. Indeed, Wurie claims that despite the United States’ contention that officers have complete discretion to search an arrestee’s person, and under the proper reading of Robinson, the government must be able to justify warrantless searches of the contents of a cell phone out of concern for protecting officer safety or preventing the destruction or concealment of evidence. See id. at 19.
IF ITEM-BY-ITEM EXCEPTIONS TO SEARCH AUTHORITY DO EXIST, SHOULD CELL PHONES FALL WITHIN AN EXCEPTION?
The United States maintains that even if search authority in the context of an arrest search were subject to item-by-item exceptions, a cell-phone exception is not warranted for many reasons. See Brief for Petitionerat 28, 29. First, the United States notes that the history of the common law dictates that police have a strong interest in gathering evidence and preventing its destruction, which not only justifies the search-incident-to-arrest exception, but also gives officers “unqualified authority” to search the person of an arrestee. See id.at 29 (quoting Robinson, 414 U.S. at 247). Indeed, the United States maintains, the court should measure the search against the “evidence-gathering” justification, which gives officers a compelling interest to search cell phones found on arrested persons. Id.at 29. From this, the United States concludes that officers should always be allowed to search cell phone call logs because an individual has no legitimate expectation of privacy in dialed phone numbers and that item-by-item judgment would be difficult to administer in the field. See id. at 26-27. Finally, the United States contends that it has been well settled for decades that the police may seize “a briefcase or package” in possession of a person during arrest and subsequently search the property without a warrant after the arrestee is taken into custody, and the same well settled principle ought to apply to cellphones and to the immediate case at hand. See id. at 27.
Wurie, on the other hand, claims that the United States’ claim is unfounded. See Brief for Respondent at 41. Initially, Wurie contends that despite the United States’ claim of historical precedent, the Court has never held that police officers may not search cell phones or other electronics pursuant to the incident to arrest exception to the warrant requirement, and thus Wurie notes that the “seize and secure” line crafted by the First Circuit is simple enough for officers to understand and administer in the field. See id.Under this rule, information in a cell phone or other electronic device may not be searched without a warrant incident to a defendant’s lawful arrest. See id.Finally, Wurie claims that the United States is mistaken in claiming that there is a “settled framework” for searching personal information within other items and that holding that the search of Wurie’s cellphone was impermissible would not disrupt any long settled precedent. See id. at 43.
This case presents the Supreme Court with the task of clarifying the scope of Fourth Amendment protection extended to an arrestee’s cell phone. This case, along with Riley v. California, will clarify the Supreme Court’s approach to the Fourth Amendment in light of modern technology.The Court must determine whether it can use previous doctrines to extend the warrantless search justification under the search-incident-to-arrest doctrine or whether a cell phone falls beyond the parameters of warrantless search justifications. The Court’s ruling will impact the rights of arrestees, and the relationship between personal information stored on electronic devices and law enforcement searches and seizures.
- ABA Journal, Erwin Chemerinsky: Is it time to go high-tech on the Fourth Amendment? (Feb. 4, 2014)
- Bloomberg News, Greg Stohr: Mobile-Phone Searches by Police Get Top U.S. Court Review (Jan. 18, 2014)
- USA TODAY, Richard Wolf: Your cellphone: private or not? (Sep. 9, 2013)