United States v. Wurie , 724 F.3d 255 ( 2013 )

United States Court of Appeals
For the First Circuit
______________________________
No. 11-1792
UNITED STATES
Appellee
v.
BRIMA WURIE
Defendant - Appellant
_______________________________
Before
Lynch, Chief Judge,
Torruella, Stahl, Lipez, Howard,
Thompson and Kayatta,
Circuit Judges.
___________________________
ORDER OF COURT
Entered: July 29, 2013
Pursuant to First Circuit Internal Operating Procedure
X(C), the petition for rehearing en banc has also been treated
as a petition for rehearing before the original panel. The
petition for rehearing having been denied by the panel of judges
who decided the case, and the petition for rehearing en banc
having been submitted to the active judges of this court and a
majority of the judges not having voted that the case be heard en
banc, it is ordered that the petition for rehearing and petition
for rehearing en banc be denied.
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LYNCH, Chief Judge, statement on denial of rehearing en
banc. I vote to deny rehearing en banc not because the case
does not meet the criteria for en banc review. It clearly does.
Indeed, the issues are very important and very complex.
I vote to deny rehearing en banc because I think the
preferable course is to speed this case to the Supreme Court for
its consideration. There are two very able opinions from this
court, and en banc review in this Court could not improve on
their presentations of the issues.
The decision in this case creates a circuit split with
respect to the validity of warrantless searches of cell phones
incident to arrest. State courts similarly are divided. As the
government points out, the differing standards which the courts
have developed provide confusing and often contradictory guidance
to law enforcement. Indeed, the highest court in the state which
this case arose has taken a view of the law that is contrary to
the decision in this case, leaving the police in need of further
guidance.
Only the Supreme Court can finally resolve these
issues, and I hope it will.
HOWARD, Circuit Judge, statement on denial of rehearing
en banc. My view of this case has not changed since I dissented
from the majority opinion. If anything, my dissent looks better
in light of the Supreme Court's recent opinion in Maryland v.
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King, 133 S. Ct. 1958 (2013), in which the Court held as
constitutional Maryland's practice of swabbing violent-crime
arrestees for DNA samples. The majority opinion, relying on the
exact same language that I quoted in dissent, reaffirmed the core
holding in United States v. Robinson, 414 U.S. 218 (1973) -- that
the search of a person and items in his immediate control
incident to an arrest requires no independent justification other
than the arrest itself. King, 133 S. Ct. at 1971-72. Indeed,
the dissent in King, while taking a more restrictive view of
searches incident to arrest, still articulated a rule that likely
would have permitted the search of Wurie's cell phone as a search
for evidence of the crime he committed. Id. at 1982 (Scalia, J.,
dissenting) ("The objects of a search incident to arrest must be
either (1) weapons or evidence that might easily be destroyed, or
(2) evidence relevant to the crime of arrest."). This only
strengthens my belief that the majority's rule is the only rule
under which the search of Wurie's cell phone was
unconstitutional. But that rule is simply without precedent.
For prudential reasons, however, I believe en banc
rehearing is unnecessary. Ultimately this issue requires an
authoritative answer from the Supreme Court, and our intermediate
review would do little to mend the growing split among lower
courts. Both the Florida Supreme Court and the Ohio Supreme
Court have adopted a warrant requirement similar to the one the
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majority found necessary in this case. See Smallwood v. State,
113 So. 3d 724 (Fla. 2013); State v. Smith, 920 N.E.2d 949 (Ohio
2009). Leaving aside these outliers (and make no mistake, we are
now an outlier in this field), those courts in agreement on this
issue have often reached the same conclusions relying on
different reasoning. Compare United States v. Flores-Lopez, 670
F.3d 803, 809-10 (7th Cir. 2012) (looking at risk to officer
safety and preservation of evidence), and United States v.
Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (analyzing the issue
as a matter of searching for evidence of the crime of arrest).
Clearly, cell phones sit at the intersection of several different
Fourth Amendment doctrines, and I suspect that each new case will
result in a slightly different interpretation of how to treat
these searches. Given this likely outcome, I welcome speedy
resolution from the Supreme Court, and see no need to delay by
reconsidering this case.
By the Court:
/s/ Margaret Carter, Clerk.
cc:
Dina Chaitowitz
Michael Dreeben
Kelly Lawrence
John Wortmann, Jr.
Ian Gold
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