United States v. Wurie , 728 F.3d 1 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-1792
UNITED STATES OF AMERICA,
Appellee,
v.
BRIMA WURIE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Stahl, and Lipez,
Circuit Judges.
Ian Gold, Assistant Federal Public Defender, for appellant.
Michael R. Dreeben, Attorney, United States Department of
Justice, with whom Carmen M. Ortiz, United States Attorney, and
Kelly Begg Lawrence, Assistant United States Attorney, were on
brief for appellee.
May 17, 2013
STAHL, Circuit Judge. This case requires us to decide
whether the police, after seizing a cell phone from an individual's
person as part of his lawful arrest, can search the phone's data
without a warrant. We conclude that such a search exceeds the
boundaries of the Fourth Amendment search-incident-to-arrest
exception. Because the government has not argued that the search
here was justified by exigent circumstances or any other exception
to the warrant requirement, we reverse the denial of defendant-
appellant Brima Wurie's motion to suppress, vacate his conviction,
and remand his case to the district court.
I. Facts & Background
On the evening of September 5, 2007, Sergeant Detective
Paul Murphy of the Boston Police Department (BPD) was performing
routine surveillance in South Boston. He observed Brima Wurie, who
was driving a Nissan Altima, stop in the parking lot of a Lil Peach
convenience store, pick up a man later identified as Fred Wade, and
engage in what Murphy believed was a drug sale in the car. Murphy
and another BPD officer subsequently stopped Wade and found two
plastic bags in his pocket, each containing 3.5 grams of crack
cocaine. Wade admitted that he had bought the drugs from "B," the
man driving the Altima. Wade also told the officers that "B" lived
in South Boston and sold crack cocaine.
Murphy notified a third BPD officer, who was following
the Altima. After Wurie parked the car, that officer arrested
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Wurie for distributing crack cocaine, read him Miranda warnings,
and took him to the police station. When Wurie arrived at the
station, two cell phones, a set of keys, and $1,275 in cash were
taken from him.
Five to ten minutes after Wurie arrived at the station,
but before he was booked, two other BPD officers noticed that one
of Wurie's cell phones, a gray Verizon LG phone, was repeatedly
receiving calls from a number identified as "my house" on the
external caller ID screen on the front of the phone. The officers
were able to see the caller ID screen, and the "my house" label, in
plain view. After about five more minutes, the officers opened the
phone to look at Wurie's call log. Immediately upon opening the
phone, the officers saw a photograph of a young black woman holding
a baby, which was set as the phone's "wallpaper." The officers
then pressed one button on the phone, which allowed them to access
the phone's call log. The call log showed the incoming calls from
"my house." The officers pressed one more button to determine the
phone number associated with the "my house" caller ID reference.
One of the officers typed that phone number into an
online white pages directory, which revealed that the address
associated with the number was on Silver Street in South Boston,
not far from where Wurie had parked his car just before he was
arrested. The name associated with the address was Manny Cristal.
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Sergeant Detective Murphy then gave Wurie a new set of
Miranda warnings and asked him a series of questions. Wurie said,
among other things, that he lived at an address on Speedwell Street
in Dorchester and that he had only been "cruising around" in South
Boston. He denied having stopped at the Lil Peach store, having
given anyone a ride, and having sold crack cocaine.
Suspecting that Wurie was a drug dealer, that he was
lying about his address, and that he might have drugs hidden at his
house, Murphy took Wurie's keys and, with other officers, went to
the Silver Street address associated with the "my house" number.
One of the mailboxes at that address listed the names Wurie and
Cristal. Through the first-floor apartment window, the officers
saw a black woman who looked like the woman whose picture appeared
on Wurie's cell phone wallpaper. The officers entered the
apartment to "freeze" it while they obtained a search warrant.
Inside the apartment, they found a sleeping child who looked like
the child in the picture on Wurie's phone. After obtaining the
warrant, the officers seized from the apartment, among other
things, 215 grams of crack cocaine, a firearm, ammunition, four
bags of marijuana, drug paraphernalia, and $250 in cash.
Wurie was charged with possessing with intent to
distribute and distributing cocaine base and with being a felon in
possession of a firearm and ammunition. He filed a motion to
suppress the evidence obtained as a result of the warrantless
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search of his cell phone; the parties agreed that the relevant
facts were not in dispute and that an evidentiary hearing was
unnecessary. The district court denied Wurie's motion to suppress,
United States v. Wurie, 612 F. Supp. 2d 104 (D. Mass. 2009), and,
after a four-day trial, the jury found Wurie guilty on all three
counts. He was sentenced to 262 months in prison. This appeal
followed.
II. Analysis
In considering the denial of a motion to suppress, we
review the district court's factual findings for clear error and
its legal conclusions de novo. United States v. Kearney, 672 F.3d
81, 88-89 (1st Cir. 2012).
The Fourth Amendment protects "[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures" and provides that "no Warrants
shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized." U.S. Const. amend. IV.
The amendment grew out of American colonial opposition to British
search and seizure practices, most notably the use of writs of
assistance, which gave customs officials broad latitude to search
houses, shops, cellars, warehouses, and other places for smuggled
goods. The Honorable M. Blane Michael, Reading the Fourth
Amendment: Guidance from the Mischief that Gave it Birth, 85 N.Y.U.
-5-
L. Rev. 905, 907-09 (2010); see generally William J. Cuddihy, The
Fourth Amendment: Origins and Original Meaning 602-1791 (2009).
James Otis, a lawyer who challenged the use of writs of
assistance in a 1761 case, famously described the practice as
"plac[ing] the liberty of every man in the hands of every petty
officer" and sounded two main themes: the need to protect the
privacy of the home (what he called the "fundamental . . .
Privilege of House"), Michael, supra, at 908 (citations and
internal quotation marks omitted), and "the inevitability of abuse
when government officials have the sort of unlimited discretion
sanctioned by the writ," id. at 909. The Supreme Court has
described Otis's argument as "perhaps the most prominent event
which inaugurated the resistance of the colonies to the oppressions
of the mother country." Boyd v. United States, 116 U.S. 616, 625
(1886).
Today, a warrantless search is per se unreasonable under
the Fourth Amendment, unless one of "a few specifically established
and well-delineated exceptions" applies. Arizona v. Gant, 556 U.S.
332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357
(1967)) (internal quotation marks omitted). One of those
exceptions allows the police, when they make a lawful arrest, to
search "the arrestee's person and the area within his immediate
control." Id. at 339 (quoting Chimel v. California, 395 U.S. 752,
763 (1969)) (internal quotation marks omitted). In recent years,
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courts have grappled with the question of whether the search-
incident-to-arrest exception extends to data within an arrestee's
cell phone.1
A. The legal landscape
The modern search-incident-to-arrest doctrine emerged
from Chimel v. California, 395 U.S. 752 (1969), in which the
Supreme Court held that a warrantless search of the defendant's
entire house was not justified by the fact that it occurred as part
of his valid arrest. The Court found that the search-incident-to-
arrest exception permits an arresting officer "to search for and
seize any evidence on the arrestee's person in order to prevent its
concealment or destruction" and to search "the area into which an
arrestee might reach in order to grab a weapon or evidentiary
items." Id. at 763. The justifications underlying the exception,
as articulated in Chimel, were protecting officer safety and
ensuring the preservation of evidence. Id.
Four years later, in United States v. Robinson, 414 U.S.
218 (1973), the Supreme Court examined how the search-incident-to-
arrest exception applies to searches of the person. Robinson was
arrested for driving with a revoked license, and in conducting a
1
On appeal, Wurie does not challenge the seizure of his
phone, and he concedes that, under the plain view exception, see
United States v. Paneto, 661 F.3d 709, 713-14 (1st Cir. 2011), the
officers were entitled to take notice of any information that was
visible to them on the outside of the phone and on its screen
(including, in this case, the incoming calls from "my house").
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pat down, the arresting officer felt an object that he could not
identify in Robinson's coat pocket. Id. at 220-23. He removed the
object, which turned out to be a cigarette package, and then felt
the package and determined that it contained something other than
cigarettes. Upon opening the package, the officer found fourteen
capsules of heroin. Id. at 223. The Court held that the
warrantless search of the cigarette package was valid, explaining
that the police have the authority to conduct "a full search of the
person" incident to a lawful arrest. Id. at 235.
Robinson reiterated the principle, discussed in Chimel,
that "[t]he justification or reason for the authority to search
incident to a lawful arrest rests quite as much on the need to
disarm the suspect in order to take him into custody as it does on
the need to preserve evidence on his person for later use at
trial." Id. at 234. However, the Court also said the following:
The authority to search the person incident to
a lawful custodial arrest, while based upon
the need to disarm and to discover evidence,
does not depend on what a court may later
decide was the probability in a particular
arrest situation that weapons or evidence
would in fact be found upon the person of the
suspect. A custodial arrest of a suspect
based on probable cause is a reasonable
intrusion under the Fourth Amendment; that
intrusion being lawful, a search incident to
the arrest requires no additional
justification.
Id. at 235.
-8-
 The following year, the Court decided United States v.
Edwards, 415 U.S. 800 (1974). Edwards was arrested on suspicion of
burglary and detained at a local jail. After his arrest, police
realized that Edwards's clothing, which he was still wearing, might
contain paint chips tying him to the burglary. The police seized
the articles of clothing and examined them for paint fragments.
Id. at 801-02. The Court upheld the search, concluding that once
it became apparent that the items of clothing might contain
destructible evidence of a crime, "the police were entitled to
take, examine, and preserve them for use as evidence, just as they
are normally permitted to seize evidence of crime when it is
lawfully encountered." Id. at 806.
The Court again addressed the search-incident-to-arrest
exception in United States v. Chadwick, 433 U.S. 1 (1977),
abrogated on other grounds by California v. Acevedo, 500 U.S. 565
(1991), this time emphasizing that not all warrantless searches
undertaken in the context of a custodial arrest are
constitutionally reasonable. In Chadwick, the defendants were
arrested immediately after having loaded a footlocker into the
trunk of a car. Id. at 3-4. The footlocker remained under the
exclusive control of federal narcotics agents until they opened it,
without a warrant and about an hour and a half after the defendants
were arrested, and found marijuana in it. Id. at 4-5. The Court
invalidated the search, concluding that the justifications for the
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search-incident-to-arrest exception -- the need for the arresting
officer "[t]o safeguard himself and others, and to prevent the loss
of evidence" -- were absent. Id. at 14. The search "was conducted
more than an hour after federal agents had gained exclusive control
of the footlocker and long after respondents were securely in
custody" and therefore could not "be viewed as incidental to the
arrest or as justified by any other exigency." Id. at 15.
Finally, there is the Supreme Court's recent decision in
Arizona v. Gant, 556 U.S. 332 (2009). Gant involved the search of
an arrestee's vehicle, which is governed by a distinct set of
rules, see id. at 343, but the Court began with a general summary
of the search-incident-to-arrest doctrine. Once again, the Court
reiterated the twin rationales underlying the exception, first
articulated in Chimel: "protecting arresting officers and
safeguarding any evidence of the offense of arrest that an arrestee
might conceal or destroy." Id. at 339 (citing Chimel, 395 U.S. at
763). Relying on those safety and evidentiary justifications, the
Court found that a search of a vehicle incident to arrest is lawful
"when the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search." Id. at 343.2
2
The Court also concluded, "[a]lthough it does not follow
from Chimel," that "circumstances unique to the vehicle context
justify a search incident to a lawful arrest when it is reasonable
to believe evidence relevant to the crime of arrest might be found
in the vehicle." Gant, 556 U.S. at 343 (citation and internal
quotation marks omitted).
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Courts have struggled to apply the Supreme Court's
search-incident-to-arrest jurisprudence to the search of data on a
cell phone seized from the person. The searches at issue in the
cases that have arisen thus far have involved everything from
simply obtaining a cell phone's number, United States v. Flores-
Lopez, 670 F.3d 803, 804 (7th Cir. 2012), to looking through an
arrestee's call records, United States v. Finley, 477 F.3d 250, 254
(5th Cir. 2007), text messages, id., or photographs, United States
v. Quintana, 594 F. Supp. 2d 1291, 1295-96 (M.D. Fl. 2009).
Though a majority of these courts have ultimately upheld
warrantless cell phone data searches, they have used a variety of
approaches. Some have concluded that, under Robinson and Edwards,
a cell phone can be freely searched incident to a defendant's
lawful arrest, with no justification beyond the fact of the arrest
itself. E.g., People v. Diaz, 244 P.3d 501 (Cal. 2011). Others
have, to varying degrees, relied on the need to preserve evidence
on a cell phone. E.g., United States v. Murphy, 552 F.3d 405, 411
(4th Cir. 2009); Finley, 477 F.3d at 260; Commonwealth v. Phifer,
979 N.E.2d 210, 213-16 (Mass. 2012). The Seventh Circuit discussed
the Chimel rationales more explicitly in Flores-Lopez, assuming
that warrantless cell phone searches must be justified by a need to
protect arresting officers or preserve destructible evidence, 670
F.3d at 806-07, and finding that evidence preservation concerns
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outweighed the invasion of privacy at issue in that case, because
the search was minimally invasive, id. at 809.
A smaller number of courts have rejected warrantless cell
phone searches, with similarly disparate reasoning. In United
States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May
23, 2007), for example, the court concluded that a cell phone
should be viewed not as an item immediately associated with the
person under Robinson and Edwards but as a possession within an
arrestee's immediate control under Chadwick, which cannot be
searched once the phone comes into the exclusive control of the
police, absent exigent circumstances, id. at *8. In State v.
Smith, 920 N.E.2d 949 (Ohio 2009), the Ohio Supreme Court
distinguished cell phones from other "closed containers" that have
been found searchable incident to an arrest and concluded that,
because an individual has a high expectation of privacy in the
contents of her cell phone, any search thereof must be conducted
pursuant to a warrant, id. at 955. And most recently, in Smallwood
v. State, __ So. 3d __, 2013 WL 1830961 (Fla. May 2, 2013), the
Florida Supreme Court held that the police cannot routinely search
the data within an arrestee's cell phone without a warrant, id. at
*10. The court read Gant as prohibiting a search once an
arrestee's cell phone has been removed from his person, which
forecloses the ability to use the phone as a weapon or to destroy
evidence contained therein. Id.
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B. Our vantage point
We begin from the premise that, in the Fourth Amendment
context, "[a] single, familiar standard is essential to guide
police officers, who have only limited time and expertise to
reflect on and balance the social and individual interests involved
in the specific circumstances they confront." Dunaway v. New York,
442 U.S. 200, 213-14 (1979). The Supreme Court has therefore
rejected "inherently subjective and highly fact specific" rules
that require "ad hoc determinations on the part of officers in the
field and reviewing courts" in favor of clear ones that will be
"readily understood by police officers." Thornton v. United
States, 541 U.S. 615, 623 (2004); see also New York v. Belton, 453
U.S. 454, 458 (1981) ("A highly sophisticated set of rules,
qualified by all sorts of ifs, ands, and buts and requiring the
drawing of subtle nuances and hairline distinctions, may be the
sort of heady stuff upon which the facile minds of lawyers and
judges eagerly feed, but they may be literally impossible of
application by the officer in the field." (citation and internal
quotation marks omitted)). As a result, when it upheld the
warrantless search of the cigarette pack in Robinson, "the Court
hewed to a straightforward rule, easily applied, and predictably
enforced." Belton, 453 U.S. at 459. Thus, we find it necessary to
craft a bright-line rule that applies to all warrantless cell phone
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searches, rather than resolving this case based solely on the
particular circumstances of the search at issue.3
The government seems to agree, urging us to find that a
cell phone, like any other item carried on the person, can be
thoroughly searched incident to a lawful arrest.4 The government's
reasoning goes roughly as follows: (1) Wurie's cell phone was an
item immediately associated with his person, because he was
carrying it on him at the time of his arrest (or at least he does
not argue otherwise); (2) such items can be freely searched without
any justification beyond the fact of the lawful arrest, see
Robinson, 414 U.S. at 235; (3) the search can occur even after the
defendant has been taken into custody and transported to the
3
The dissent, advocating a case-by-case, fact-specific
approach, relies on Missouri v. McNeely, 133 S. Ct. 1552 (2013),
which rejected a per se rule for warrantless blood tests of drunk
drivers. But McNeely involved the exigent circumstances exception
to the warrant requirement, and courts must "evaluate each case of
alleged exigency based 'on its own facts and circumstances.'" Id.
at 1559 (quoting Go-Bart Importing Co. v. United States, 282 U.S.
344, 357 (1931)). The Supreme Court explicitly distinguished the
exigency exception, which "naturally calls for a case-specific
inquiry," from the search-incident-to-arrest exception, which
"appl[ies] categorically." Id. at 1559 n.3.
4
It is worth noting three things that the government is not
arguing in this case. First, it does not challenge the district
court's finding that what occurred here was a Fourth Amendment
search. See Wurie, 612 F. Supp. 2d at 109 ("It seems indisputable
that a person has a subjective expectation of privacy in the
contents of his or her cell phone."). Second, the government does
not suggest that Wurie's expectation of privacy was in any way
reduced because his phone was apparently not password-protected.
Third, it does not claim that this was an inventory search. See
Illinois v. Lafayette, 462 U.S. 640 (1983).
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station house, see Edwards, 415 U.S. at 803;5 and (4) there is no
limit on the scope of the search, other than the Fourth Amendment's
core reasonableness requirement, see id. at 808 n.9.6
This "literal reading of the Robinson decision," Flores-
Lopez, 670 F.3d at 805, fails to account for the fact that the
Supreme Court has determined that there are categories of searches
undertaken following an arrest that are inherently unreasonable
because they are never justified by one of the Chimel rationales:
protecting arresting officers or preserving destructible evidence.
5
It is not clear from the record how much time passed between
Wurie's arrest and the search of his cell phone at the station
house. Nonetheless, because Wurie has not raised the argument, we
need not decide whether the government is correct that, under
Edwards, the search here was "incident to" Wurie's arrest, despite
the delay. See 415 U.S. at 803 ("[S]earches and seizures that
could be made on the spot at the time of arrest may legally be
conducted later when the accused arrives at the place of
detention.").
6
The government has also suggested a more limited way for us
to resolve this case: by holding that this particular search was
lawful under United States v. Sheehan, 583 F.2d 30 (1st Cir. 1978).
But Sheehan was a seizure case, not a search case, and "[i]t is
extremely important to distinguish a search of the person from a
seizure of objects found in that search." 3 Wayne R. LaFave,
Search & Seizure § 5.2(j), at 185 (5th ed. 2012). The defendant in
Sheehan conceded that "the search of his wallet was legal"; he
challenged only the seizure of a list of names and telephone
numbers in the wallet. 583 F.2d at 31. Because the list was not
"a fruit, instrumentality, or contraband, probative of a crime,"
but rather "mere evidence," we analyzed whether probable cause
existed to support the seizure. Id. (citing Warden v. Hayden, 387
U.S. 294 (1967)). The lawfulness of a search of the person
incident to arrest, however, does not turn on the likelihood that
evidence of the crime of arrest will be discovered. See Robinson,
414 U.S. at 234. The Supreme Court did articulate such a rule in
Gant but limited it to the vehicle context. 556 U.S. at 343.
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E.g., Gant, 556 U.S. 332; Chadwick, 433 U.S. 1. As we explain
below, this case therefore turns on whether the government can
demonstrate that warrantless cell phone searches, as a category,
fall within the boundaries laid out in Chimel.
The government admitted at oral argument that its
interpretation of the search-incident-to-arrest exception would
give law enforcement broad latitude to search any electronic device
seized from a person during his lawful arrest, including a laptop
computer or a tablet device such as an iPad. The search could
encompass things like text messages, e.g., Finley, 477 F.3d at 254,
emails, e.g., People v. Nottoli, 130 Cal. Rptr. 3d 884, 894 (Cal.
Ct. App. 2011), or photographs, e.g., Quintana, 594 F. Supp. 2d at
1295-96, though the officers here only searched Wurie's call log.
Robinson and Edwards, the government claims, compel such a finding.
We suspect that the eighty-five percent of Americans who
own cell phones and "use the devices to do much more than make
phone calls," Maeve Duggan & Lee Rainie, Cell Phone Activities
2012, Pew Internet & American Life Project, 2 (Nov. 25, 2012),
http://pewinternet.org/~/media//Files/Reports/2012/PIP_CellActivi
ties_11.25.pdf, would have some difficulty with the government's
view that "Wurie's cell phone was indistinguishable from other
kinds of personal possessions, like a cigarette package, wallet,
pager, or address book, that fall within the search incident to
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arrest exception to the Fourth Amendment's warrant requirement."7
In reality, "a modern cell phone is a computer," and "a computer
. . . is not just another purse or address book." Flores-Lopez,
670 F.3d at 805. The storage capacity of today's cell phones is
immense. Apple's iPhone 5 comes with up to sixty-four gigabytes of
storage, see Apple, iPhone, Tech Specs, http://www.apple.com/iphone
/specs.html (last visited May 16, 2013), which is enough to hold
about "four million pages of Microsoft Word documents," Charles E.
MacLean, But, Your Honor, a Cell Phone is Not a Cigarette Pack: An
Immodest Call for a Return to the Chimel Justifications for Cell
Phone Memory Searches Incident to Lawful Arrest, 6 Fed. Cts. L.
Rev. 37, 42 (2012).8
7
See, e.g., United States v. Ortiz, 84 F.3d 977, 984 (7th
Cir. 1996) (pager); United States v. Uricoechea-Casallas, 946 F.2d
162, 166 (1st Cir. 1991) (wallet); United States v. Holzman, 871
F.2d 1496, 1504-05 (9th Cir. 1989) (address book), overruled on
other grounds by Horton v. California, 496 U.S. 128 (1990); United
States v. Burnette, 698 F.2d 1038, 1049 (9th Cir. 1983) (purse);
United States v. Eatherton, 519 F.2d 603, 610-11 (1st Cir. 1975)
(briefcase).
8
We are also cognizant of the fact that "[m]obile devices
increasingly store personal user data in the cloud instead of on
the device itself," which "allows the data to be accessed from
multiple devices and provides backups." James E. Cabral et al.,
Using Technology to Enhance Access to Justice, 26 Harv. J.L. &
Tech. 241, 268 (2012). Though the government insisted at oral
argument that it was not seeking a rule that would permit access to
information stored in the cloud, we believe that it may soon be
impossible for an officer to avoid accessing such information
during the search of a cell phone or other electronic device, which
could have additional privacy implications. See United States v.
Cotterman, 709 F.3d 952, 965 (9th Cir. 2013) (en banc) ("With the
ubiquity of cloud computing, the government's reach into private
data becomes even more problematic.").
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That information is, by and large, of a highly personal
nature: photographs, videos, written and audio messages (text,
email, and voicemail), contacts, calendar appointments, web search
and browsing history, purchases, and financial and medical records.
See United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013)
(en banc) ("The papers we create and maintain not only in physical
but also in digital form reflect our most private thoughts and
activities.").9 It 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. See Chimel, 395
U.S. 752. Indeed, modern cell phones provide direct access to the
home in a more literal way as well; iPhones can now connect their
owners directly to a home computer's webcam, via an application
called iCam, so that users can monitor the inside of their homes
remotely. Flores-Lopez, 670 F.3d at 806. "At the touch of a
button a cell phone search becomes a house search, and that is not
a search of a 'container' in any normal sense of that word, though
a house contains data." Id.
In short, individuals today store much more personal
information on their cell phones than could ever fit in a wallet,
address book, briefcase, or any of the other traditional containers
9
For cases demonstrating the potential for abuse of private
information contained in a modern cell phone, see, for example,
Schlossberg v. Solesbee, 844 F. Supp. 2d 1165 (D. Or. 2012), and
Newhard v. Borders, 649 F. Supp. 2d 440 (W.D. Va. 2009).
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that the government has invoked. See id. at 805 (rejecting the
idea that a cell phone can be compared to other items carried on
the person, because today's cell phones are "quite likely to
contain, or provide ready access to, a vast body of personal
data").10 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. Matthew E.
Orso, Cellular Phones, Warrantless Searches, and the New Frontier
of Fourth Amendment Jurisprudence, 50 Santa Clara L. Rev. 183, 211
(2010). We are reminded of James Otis's concerns about "plac[ing]
the liberty of every man in the hands of every petty officer."
Michael, supra, at 908 (citation and internal quotation marks
omitted).
10
The record here does not reveal the storage capacity of
Wurie's cell phone, but that is of no significance, for two
reasons. First, "[e]ven the dumbest of modern cell phones gives
the user access to large stores of information." Flores-Lopez, 670
F.3d at 806. Second, neither party has suggested that our holding
today should turn on the specific features of Wurie's cell phone,
and we find such a rule unworkable in any event. See Thornton, 541
U.S. at 623; Murphy, 552 F.3d at 411 ("[T]o require police officers
to ascertain the storage capacity of a cell phone before conducting
a search would simply be an unworkable and unreasonable rule.").
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It is true that Robinson speaks broadly, and that the
Supreme Court has never found the constitutionality of a search of
the person incident to arrest to turn on the kind of item seized or
its capacity to store private information. In our view, however,
what distinguishes a warrantless search of the data within a modern
cell phone from the inspection of an arrestee's cigarette pack or
the examination of his clothing is not just the nature of the item
searched, but the nature and scope of the search itself.
In Gant, the Court emphasized the need for "the scope of
a search incident to arrest" to be "commensurate with its
purposes," which include "protecting arresting officers and
safeguarding any evidence of the offense of arrest that an arrestee
might conceal or destroy." 556 U.S. at 339; see also Chimel, 395
U.S. at 762-63 ("When an arrest is made, it is reasonable for the
arresting officer to search the person arrested in order to remove
any weapons that the latter might seek to use . . . [and] to search
for and seize any evidence on the arrestee's person in order to
prevent its concealment or destruction."). Inspecting the contents
of a cigarette pack can (and, in Robinson, did) preserve
destructible evidence (heroin capsules). It is also at least
theoretically necessary to protect the arresting officer, who does
not know what he will find inside the cigarette pack. Examining
the clothing an arrestee is wearing can (and, in Edwards, did)
preserve destructible evidence (paint chips). Thus, the searches
-20-
at issue in Robinson and Edwards were the kinds of reasonable,
self-limiting searches that do not offend the Fourth Amendment,
even when conducted without a warrant. The same can be said of
searches of wallets, address books, purses, and briefcases, which
are all potential repositories for destructible evidence and, in
some cases, weapons.
When faced, however, with categories of searches that
cannot ever be justified under Chimel, the Supreme Court has taken
a different approach. In Chadwick, the Court struck down
warrantless searches of "luggage or other personal property not
immediately associated with the person of the arrestee" that the
police have "reduced . . . to their exclusive control," because
such searches are not necessary to preserve destructible evidence
or protect officer safety. 433 U.S. at 15. Similarly, in Gant,
the Court concluded that searching the passenger compartment of a
vehicle once the arrestee has been secured and confined to a police
car neither preserves destructible evidence nor protects officer
safety. 556 U.S. at 335; see also id. at 339 ("If there is no
possibility that an arrestee could reach into the area that law
enforcement officers seek to search, both justifications for the
search-incident-to-arrest exception are absent and the rule does
not apply."). The searches at issue in Chadwick and Gant were
general, evidence-gathering searches, not easily subject to any
limiting principle, and the Fourth Amendment permits such searches
-21-
only pursuant to a lawful warrant. See Thornton, 541 U.S. at 632
(Scalia, J., concurring) ("When officer safety or imminent evidence
concealment or destruction is at issue, officers should not have to
make fine judgments in the heat of the moment. But in the context
of a general evidence-gathering search, the state interests that
might justify any overbreadth are far less compelling.").
We therefore find it necessary to ask whether the
warrantless search of data within a cell phone can ever be
justified under Chimel. See Flores-Lopez, 670 F.3d at 806-10
(considering whether either of the Chimel rationales applies to
cell phone data searches); cf. United States v. Ortiz, 84 F.3d 977,
984 (7th Cir. 1996) (upholding the warrantless search of a pager
incident to arrest because of the risk of destruction of evidence).
The government has provided little guidance on that question.
Instead, it has hewed to a formalistic interpretation of the case
law, forgetting that the search-incident-to-arrest doctrine does
not describe an independent right held by law enforcement officers,
but rather a class of searches that are only reasonable in the
Fourth Amendment sense because they are potentially necessary to
preserve destructible evidence or protect police officers. Indeed,
the government has included just one, notably tentative footnote
in its brief attempting to place warrantless cell phone data
searches within the Chimel boundaries. We find ourselves
unconvinced.
-22-
The government does not argue that cell phone data
searches are justified by a need to protect arresting officers.
Wurie concedes that arresting officers can inspect a cell phone to
ensure that it is not actually a weapon, see Flores-Lopez, 670 F.3d
at 806 ("One can buy a stun gun that looks like a cell phone."),
but we have no reason to believe that officer safety would require
a further intrusion into the phone's contents. As we mentioned
earlier, the officer who conducted the search in Robinson had no
idea what he might find in the cigarette pack, which therefore
posed a safety risk. The officers who searched Wurie's phone, on
the other hand, knew exactly what they would find therein: data.
They also knew that the data could not harm them.
The government has, however, suggested that the search
here was "arguably" necessary to prevent the destruction of
evidence. Specifically, the government points to the possibility
that the calls on Wurie's call log could have been overwritten or
the contents of his phone remotely wiped if the officers had waited
to obtain a warrant.11 The problem with the government's argument
11
The government and our dissenting colleague have also
suggested that Wurie's failure to answer calls or to return home
after the drug deal might have alerted others to the fact of his
arrest and caused them to destroy or conceal evidence (presumably
the drug stash later discovered at his home). That is mere
speculation, and it is also a possibility present in almost every
instance of a custodial arrest; we do not think that such concerns
should always justify the search of a cell phone or other
electronic device. Furthermore, the risk of destruction, as we
understand it, attaches to the evidence that the arrestee is
actually carrying on his person -- not to evidence being held or
-23-
is that it does not seem to be particularly difficult to prevent
overwriting of calls or remote wiping of information on a cell
phone today. Arresting officers have at least three options.
First, in some instances, they can simply turn the phone off or
remove its battery. See Flores-Lopez, 670 F.3d at 808; Diaz, 244
P.3d at 515 n.24 (Werdegar, J., dissenting). Second, they can put
the phone in a Faraday enclosure, a relatively inexpensive device
"formed by conducting material that shields the interior from
external electromagnetic radiation." MacLean, supra, at 50
(citation and internal quotation marks omitted); see also Flores-
Lopez, 670 F.3d at 809. Third, they may be able "to 'mirror'
(copy) the entire cell phone contents, to preserve them should the
phone be remotely wiped, without looking at the copy unless the
original disappears." Flores-Lopez, 670 F.3d at 809.
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
guarded elsewhere by a co-conspirator. See Gant, 556 U.S. at 339
(describing the need to safeguard "any evidence of the offense of
arrest that an arrestee might conceal or destroy" (emphasis
added)); Chimel, 395 U.S. at 763 ("In addition, it is entirely
reasonable for the arresting officer to search for and seize any
evidence on the arrestee's person in order to prevent its
concealment or destruction." (emphasis added)).
-24-
here was "remote" indeed. Weighed against the significant privacy
implications inherent in cell phone data searches, we view such a
slight and truly theoretical risk of evidence destruction as
insufficient. While the measures described above may be less
convenient for arresting officers than conducting a full search of
a cell phone's data incident to arrest, the government has not
suggested that they are unworkable, and it bears the burden of
justifying its failure to obtain a warrant. See United States v.
Jeffers, 342 U.S. 48, 51 (1951). "[T]he mere fact that law
enforcement may be made more efficient can never by itself justify
disregard of the Fourth Amendment." Mincey v. Arizona, 437 U.S.
385, 393 (1978).
Instead of truly attempting to fit this case within the
Chimel framework, the government insists that we should disregard
the Chimel rationales entirely, for two reasons.
First, the government emphasizes that Robinson rejected
the idea that "there must be litigated in each case the issue of
whether or not there was present one of the reasons supporting the
authority for a search of the person incident to a lawful arrest."
414 U.S. at 235. That holding was predicated on an assumption,
clarified in Chadwick, that "[t]he potential dangers lurking in all
custodial arrests" are what "make warrantless searches of items
within the 'immediate control' area reasonable without requiring
the arresting officer to calculate the probability that weapons or
-25-
destructible evidence may be involved." 433 U.S. at 14-15. For
the reasons we just discussed, that assumption appears to be
incorrect in the case of cell phone data searches. More
importantly, however, we are not suggesting a rule that would
require arresting officers or reviewing courts to decide, on a
case-by-case basis, whether a particular cell phone data search is
justified under Chimel. Rather, we believe that warrantless cell
phone data searches are categorically unlawful under the search-
incident-to-arrest exception, given the government's failure to
demonstrate that they are ever necessary to promote officer safety
or prevent the destruction of evidence. We read Robinson as
compatible with such a finding.
Second, the government places great weight on a footnote
at the end of Chadwick stating that searches of the person, unlike
"searches of possessions within an arrestee's immediate control,"
are "justified by . . . reduced expectations of privacy caused by
the arrest." 433 U.S. at 16 n.10. The government reads that
footnote as establishing an unlimited principle that searches of
items carried on the person require no justification whatsoever
beyond a lawful arrest, making Chimel irrelevant in this context.
The Chadwick footnote is surely meant to reference similar language
in Robinson explaining that, because the "custodial arrest of a
suspect based on probable cause is a reasonable intrusion under the
-26-
Fourth Amendment[,] . . . a search incident to the arrest requires
no additional justification." 414 U.S. at 235.
Yet the Court clearly stated in Robinson that "[t]he
authority to search the person incident to a lawful custodial
arrest" is "based upon the need to disarm and to discover
evidence," id., and Chadwick did not alter that rule. When the
Court decided Robinson in 1973 and Chadwick in 1977, any search of
the person would almost certainly have been the type of self-
limiting search that could be justified under Chimel. The Court,
more than thirty-five years ago, could not have envisioned a world
in which the vast majority of arrestees would be carrying on their
person an item containing not physical evidence but a vast store of
intangible data -- data that is not immediately destructible and
poses no threat to the arresting officers.
In the end, we therefore part ways with the Seventh
Circuit, which also applied the Chimel rationales in Flores-Lopez.
Though the court described the risk of evidence destruction as
arguably "so slight as to be outweighed by the invasion of privacy
from the search," it found that risk to be sufficient, given the
minimal nature of the intrusion at issue (the officers had only
searched the cell phone for its number). Flores-Lopez, 670 F.3d at
809. That conclusion was based, at least in part, on Seventh
Circuit precedent allowing a "minimally invasive" warrantless
-27-
search. Id. at 807 (citing United States v. Concepcion, 942 F.2d
1170 (7th Cir. 1991)).
We are faced with different precedent and different
facts, but we also see little room for a case-specific holding,
given the Supreme Court's insistence on bright-line rules in the
Fourth Amendment context. See, e.g., Thornton, 541 U.S. at 623. A
series of opinions allowing some cell phone data searches but not
others, based on the nature and reasonableness of the intrusion,
would create exactly the "inherently subjective and highly fact
specific" set of rules that the Court has warned against and would
be extremely difficult for officers in the field to apply. Id.
Thus, while the search of Wurie's call log was less invasive than
a search of text messages, emails, or photographs, it is necessary
for all warrantless cell phone data searches to be governed by the
same rule. A rule based on particular instances in which the
police do not take full advantage of the unlimited potential
presented by cell phone data searches would prove impotent in those
cases in which they choose to exploit that potential.
We therefore hold that the search-incident-to-arrest
exception does not authorize the warrantless search of data on a
cell phone seized from an arrestee's person, because the government
has not convinced us that such a search is ever necessary to
protect arresting officers or preserve destructible evidence. See
Chimel, 395 U.S. at 763. Instead, warrantless cell phone data
-28-
searches strike us as a convenient way for the police to obtain
information related to a defendant's crime of arrest -- or other,
as yet undiscovered crimes -- without having to secure a warrant.
We find nothing in the Supreme Court's search-incident-to-arrest
jurisprudence that sanctions such a "general evidence-gathering
search." Thornton, 541 U.S. at 632 (Scalia, J., concurring).12
There are, however, other exceptions to the warrant
requirement that the government has not invoked here but that might
justify a warrantless search of cell phone data under the right
conditions. Most importantly, we assume that the exigent
circumstances exception would allow the police to conduct an
immediate, warrantless search of a cell phone's data where they
have probable cause to believe that the phone contains evidence of
a crime, as well as a compelling need to act quickly that makes it
impracticable for them to obtain a warrant -- for example, where
the phone is believed to contain evidence necessary to locate a
kidnapped child or to investigate a bombing plot or incident. See
United States v. Tibolt, 72 F.3d 965, 969 (1st Cir. 1995)
(discussing the exigent circumstances exception).
12
We acknowledge that we may have to revisit this issue in the
years to come, if further changes in technology cause warrantless
cell phone data searches to become necessary under one or both of
the Chimel rationales.
-29-
C. The good-faith exception
That leaves only the government's belated argument, made
for the first time in a footnote in its brief on appeal, that
suppression is inappropriate here under the good-faith exception to
the exclusionary rule. See United States v. Leon, 468 U.S. 897
(1984). The government bears the "heavy burden" of proving that
the good-faith exception applies, United States v. Syphers, 426
F.3d 461, 468 (1st Cir. 2005), and it did not invoke the exception
before the district court.
This is not a case in which an intervening change in the
law made the good-faith exception relevant only after the district
court issued its opinion. E.g., Davis v. United States, 131 S. Ct.
2419, 2425-26 (2011); United States v. Sparks, 711 F.3d 58, 61-62
(1st Cir. 2013); United States v. Lopez, 453 F. App'x 602, 605 (6th
Cir. 2011); see also United States v. Curtis, 635 F.3d 704, 713-14
(5th Cir. 2011) (applying the good-faith exception "to a search
that was legal at the time it was conducted but has been rendered
illegal by an intervening change in the law"); United States v.
McCane, 573 F.3d 1037, 1044 (10th Cir. 2009) (finding that "a
police officer who undertakes a search in reasonable reliance upon
the settled case law of a United States Court of Appeals, even
though the search is later deemed invalid by Supreme Court
decision, has not engaged in misconduct"). The government
emphasizes that we may affirm the district court's suppression
-30-
ruling on any ground made manifest by the record. United States v.
Doe, 61 F.3d 107, 111–12 (1st Cir. 1995). In this case, however,
we do not believe that ground should be one with respect to which
the government bore the burden of proof and entirely failed to
carry that burden below, despite the fact that the issue was ripe
for the district court's review.13
III. Conclusion
Since the time of its framing, "the central concern
underlying the Fourth Amendment" has been ensuring that law
enforcement officials do not have "unbridled discretion to rummage
at will among a person's private effects." Gant, 556 U.S. at 345;
see also Chimel, 395 U.S. at 767-68. Today, many Americans store
their most personal "papers" and "effects," U.S. Const. amend. IV,
in electronic format on a cell phone, carried on the person.
Allowing 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."
Gant, 556 U.S. at 345; cf. United States v. Jones, 132 S. Ct. 945,
950 (2012) ("At bottom, we must 'assur[e] preservation of that
degree of privacy against government that existed when the Fourth
13
The government invokes United States v. Grupee, 682 F.3d
143, 148 (1st Cir. 2012), in which we addressed the good-faith
exception despite the fact that the district court had not done so
in its opinion. However, the record in that case reveals that the
government had raised the good-faith exception below; the district
court simply did not reach it.
-31-
Amendment was adopted.'" (quoting Kyllo v. United States, 533 U.S.
27, 34 (2001))).
We therefore reverse the denial of Wurie's motion to
suppress, vacate his conviction, and remand for further proceedings
consistent with this opinion.
-Dissenting Opinion Follows-
-32-
HOWARD, Circuit Judge, dissenting. Undoubtedly, most of
us would prefer that the information stored in our cell phones be
kept from prying eyes, should a phone be lost or taken from our
hands by the police during an arrest. One could, individually,
take protective steps to enhance the phone's security settings with
respect to that information, or for that matter legislation might
be enacted to make such unprotected information off-limits to
finders or to the police unless they first obtain a warrant to
search the phone. But the question here is whether the Fourth
Amendment requires this court to abandon long-standing precedent
and place such unprotected information contained in cell phones
beyond the reach of the police when making a custodial arrest. I
think that we are neither required nor authorized to rule as the
majority has.
Instead, this case requires us to apply a familiar legal
standard to a new form of technology. This is an exercise we must
often undertake as judges, for the Constitution is as durable as
technology is disruptive. In this exercise, consistency is a
virtue. Admittedly, when forced to confront the boundaries not
only of the Fourth Amendment, but also of the technology in
question, it is not surprising that we would look beyond the case
at hand and theorize about the long-term effects of our decision.
Yet the implications of our decisions, while important, are
ancillary to our constitutionally defined power to resolve each
-33-
case as it appears before us. Having scrutinized the relevant
Supreme Court decisions, as well as our own precedent, I find no
support for Wurie's claim that he had a constitutional right
protecting the information obtained during the warrantless search.
Nor do I believe that we possess the authority to create such a
right. Therefore, I respectfully dissent.
The facts are clear: the police conducted a valid
custodial arrest of Wurie; the cell phone was on Wurie's person at
the time of the arrest; after seeing repeated calls to Wurie's cell
phone from "my house," the police flipped it open and, pressing two
buttons, retrieved the associated number.
We have long acknowledged that police officers can
extract this type of information from containers immediately
associated with a person at the time of arrest. In United States
v. Sheehan, 583 F.2d 30 (1st Cir. 1978), police arrested a
suspected bank robber and then searched his wallet, which included
a piece of paper bearing several names and telephone numbers. Id.
at 30-31. The police officers copied this piece of paper, which
action Sheehan challenged as an unconstitutional seizure. The
claim is made that Sheehan is inapposite to the present case
because it concerned a challenge to the seizure, not the search.
We, however, did not address the warrantless search in Sheehan
because its legality was beyond dispute. Judge Coffin, for the
court, noted as an initial matter that "[a]ppellant concedes, as he
-34-
must, that his arrest was lawful and that therefore the search of
his wallet was legal." Id. (emphasis added). It is not as though
Sheehan left the legality of the search unresolved; rather, the
court considered the issue uncontroversial, and therefore provided
no elaboration. See also United States v. Uricoechea-Casallas, 946
F.2d 162, 165-66 (1st Cir. 1991) (upholding the warrantless search
of a wallet incident to a custodial arrest).
Sheehan was no outlier. Courts have regularly upheld
warrantless searches of nearly identical information in a range of
"containers." E.g., United States v. Ortiz, 84 F.3d 977, 984 (7th
Cir. 1996) (telephone numbers from a pager); United States v.
Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993) (address book kept
inside a wallet); United States v. Molinaro, 877 F.2d 1341, 1346-47
(7th Cir. 1989) (phone numbers on slips of paper found in a
wallet); United States v. Holzman, 871 F.2d 1496, 1504-05 (9th Cir.
1989) (address book), abrogated on other grounds by Horton v.
California, 496 U.S. 128 (1990).
The police officers' limited search of one telephone
number in Wurie's call log was even less intrusive than the
searches in these cases. The police observed, in plain view,
multiple calls from "my house" -- a shorthand similar to what
millions of cell phone owners use to quickly identify calls instead
of the number assigned by the service provider -- to Wurie's cell
phone. Only then did they initiate their search and only for the
-35-
limited purpose of retrieving the actual phone number associated
with "my house." The police did not rummage through Wurie's cell
phone, unsure of what they could find. Before they had even begun
their search, they knew who was calling Wurie and how many times
the person had called. The additional step of identifying the
actual telephone number hardly constituted a further intrusion on
Wurie's privacy interests, especially since that information is
immediately known to the third-party telephone company. See United
States v. Flores-Lopez, 670 F.3d 803, 807 (7th Cir. 2012) (holding
that the police could retrieve an arrestee's cell phone number from
his phone without a warrant, in part, because "the phone company
knows a phone's number as soon as the call is connected to the
telephone network; and obtaining that information from the phone
company isn't a search because by subscribing to the telephone
service the user of the phone is deemed to surrender any privacy
interest he may have had in his phone number") (citing Smith v.
Maryland, 442 U.S. 735, 742-43 (1979)); see also Matthew E. Orso,
Cellular Phones, Warrantless Searches, and the New Frontier of
Fourth Amendment Jurisprudence, 50 Santa Clara L. Rev. 183, 210
(suggesting a rule that permits the warrantless search of "call
lists and text message addressees" pursuant to an arrest). This
case fits easily within existing precedent.
Nor are there any other persuasive grounds for
distinguishing this case from our previous decisions. That the
-36-
container the police searched was a cell phone is not, by itself,
dispositive, for "a constitutional distinction between 'worthy' and
'unworthy' containers would be improper." United States v. Ross,
456 U.S. 798, 822 (1982). We made a similar observation in United
States v. Eatherton, 519 F.2d 603 (1st Cir. 1975), where we upheld
the warrantless search of a briefcase incident to an arrest. Id.
at 610-11. We recognized that a briefcase had some unique
characteristics, but explicitly rejected any analysis turning on
the nature of the searched container: "While a briefcase may be a
different order of container from a cigarette box, it is not easy
to rest a principled articulation of the reach of the fourth
amendment upon the distinction. . . . [W]hile [such a distinction]
may have analytical appeal, it does not presently represent the
law." Id. at 610 (citations omitted).
Even assuming that cell phones possess unique attributes
that we must consider as part of our analysis, none of those
attributes are present in this case. Though we do not know the
storage capacity of Wurie's cell phone, we know that the police did
not browse through voluminous data in search of general evidence.
Nor did they search the "cloud,"14 or other applications containing
particularly sensitive information. Instead, they conducted a
14
The government does not claim a right to conduct warrantless
searches of information in the cloud. This is an important
concession, for it suggests that the government accepts that there
are limits to searches of items found on custodial arrestees. I
discuss my view of those limits later.
-37-
focused and limited search of Wurie's electronic call log. If the
information that they sought had been written on a piece of paper,
as opposed to stored electronically, there would be no question
that the police acted constitutionally, so I see no reason to hold
otherwise in this case. The constitutionality of a search cannot
turn solely on whether the information is written in ink or
displayed electronically.
The issue of warrantless cell phone searches has come
before a number of circuits. E.g., Flores-Lopez, 670 F.3d at 803-
10; United States v. Curtis, 635 F.3d 704, 712 (5th Cir. 2011);
Silvan W. v. Briggs, 309 F. App'x 216, 225 (10th Cir. 2009)
(unpublished); United States v. Murphy, 552 F.3d 405, 411 (4th Cir.
2009). None of them have adopted the majority's categorical bar on
warrantless cell phone searches. Instead, they unanimously have
concluded that the cell phone searches before them did not violate
the Fourth Amendment.
I reach the same conclusion here. Wurie's cell phone was
on his person at the time of the arrest. The information that the
police looked at was of a character that we have previously held
searchable during a custodial arrest. Wurie has made no convincing
argument for why this search is any different than the search for
phone numbers kept in a wallet or an address book. Thus, I see no
reason to look for complications where none exist; Wurie has not
shown a violation of his Fourth Amendment rights.
-38-
In my view, there is another rationale, apparent from the
record, for upholding this search: the risk that others might have
destroyed evidence after Wurie did not answer his phone. Wurie
received repeated calls from "my house" in the span of a few
minutes after his arrest. His failure to answer these phone calls
could have alerted Wurie's confederates to his arrest, prompting
them to destroy further evidence of his crimes. The majority
asserts that this scenario would be present "in almost every
instance of a custodial arrest," giving police an ever-ready
justification to search cell phones. Supra at 23 n.11. On the
contrary, the justification is based on the specific facts of this
case. The fact that "my house" repeatedly called Wurie's cell
phone provided an objective basis for enhanced concern that
evidence might be destroyed and thus gave the police a valid reason
to inspect the phone. See United States v. Chimel, 395 U.S. 752,
762-63 (1969).
This additional reason for affirmance is not a novel one.
United States v. Gomez, 807 F. Supp. 2d 1134 (S.D. Fla. 2011),
presents a comparable example. In that case, police officers,
after observing multiple phone calls from the same number to an
arrested drug dealer's cell phone, first answered the ringing cell
phone and thereafter communicated to the caller via text message
while posing as the arrestee, which led to the discovery of
additional evidence. Id. at 1139. The district court denied a
-39-
motion to suppress this evidence, holding the police acted
according to "the exigencies commensurate with the Defendant's
ringing cell phone." Id. at 1152; see also United States v. De La
Paz, 43 F. Supp. 2d 370, 375-76 (S.D.N.Y. 1999) (admitting evidence
-- under the exigent circumstances exception -- obtained when the
police answered an arrestee's cell phone and heard multiple callers
identify the arrestee by his drug dealer moniker). The police
action in this case is analogous -- arguably less invasive -- and
a further reason why Wurie's constitutional challenge founders on
the specific facts of this case.
Granted, my fact-specific view does not comport with the
all-or-nothing approach adopted by the majority and some state
courts, see Smallwood v. State, No. SC11-1130, 2013 WL 1830961
(Fla. May 2, 2013); State v. Smith, 920 N.E.2d 949 (Ohio 2009).
But I find the competing rationale unpersuasive.15 Most pointedly,
for the reasons explained above, Wurie himself suffered no
constitutional violation during the search. If we are to fashion
15
The insistence on a bright-line rule contrasts with the
recent Supreme Court opinion in Missouri v. McNeely, 133 S. Ct.
1552 (2013), which rejected a bright line rule and instead relied
on a totality of the circumstances analysis for warrantless blood
tests of drunk drivers, id. at 1564 ("[A] case-by-case approach is
hardly unique within our Fourth Amendment jurisprudence. Numerous
police actions are judged based on fact-intensive, totality of the
circumstances analyses rather than according to categorical rules,
including in situations that are [] likely to require police
officers to make difficult split-second judgments."). While it can
be argued that a bright-line rule is preferable, it cannot be
claimed that such a rule is necessary.
-40-
a rule, it cannot elide the facts before us. "The constitutional
validity of a warrantless search is pre-eminently the sort of
question which can only be decided in the concrete factual context
of the individual case." Sibron v. New York, 392 U.S. 40, 59
(1968). Yet the competing analysis focuses on hypothetical
searches that have not emerged in any case or controversy before
this court. Those scenarios may one day form the basis of our
reasoning in another case, but they cannot govern our analysis of
Wurie's claim.
The majority gets around this problem by requiring the
government to "demonstrate that warrantless cell phone searches, as
a category, fall within the boundaries laid out in Chimel." Supra
at 16. It cites United States v. Chadwick, 433 U.S. 1 (1977),
abrogated on other grounds by California v. Acevedo, 500 U.S. 565
(1991), and Arizona v. Gant, 556 U.S. 332 (2009), to support this
approach. The Supreme Court did hold on those two occasions,
neither of which involved the search of items held by the arrestee,
that certain types of searches require a warrant because they lack
any Chimel justification. But the Supreme Court has not
extrapolated from those cases a general rule that the government
justify each category of searches under Chimel, nor a requirement
that the appellate courts conduct this sort of analysis.
Indeed, if the Supreme Court wishes us to look at
searches incident to arrest on a categorical basis, it is curious
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that the Court has offered absolutely no framework for defining
what constitutes a distinct category. Each arrest has its own
nuances and variations, from the item searched (as in this case) to
the officer's control over it (as was the case in Chadwick), and
there could be infinite distinct categories of searches based on
these variations. Yet no relevant criteria are articulated for
establishing these categories. That is not a good way to impose
this new paradigm, under which every arrestee is now invited to
argue that his search falls into some distinct category and
therefore must be justified under Chimel.
Thus, either we are drastically altering the holding in
United States v. Robinson, 414 U.S. 218 (1973), by forcing the
government to provide a Chimel rationale for practically every
search, or we are putting ourselves in the position of deciding,
without any conceptual basis, which searches are part of a distinct
"category" and which are not. This runs the risk of spreading
confusion in the law enforcement community and multiplying, rather
than limiting, litigation pertaining to these searches.
It is argued that the categorical approach flows from the
Supreme Court's opinion in Gant, which reaffirmed "the fundamental
principles established in the Chimel case regarding the basic scope
of searches incident to lawful custodial arrests." Gant, 556 U.S.
at 343 (quoting New York v. Belton, 453 U.S. 454, 460 n.3 (1981)).
Gant did take a categorical, Chimel-based approach to the search in
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question, but its usefulness for our analysis should not be
overstated.
As the government points out, the Supreme Court cases
treat searches of the arrestee and the items on the arrestee –- as
is the case here –- as either not subject to the Chimel analysis,
or at a least subject to a lower level of Chimel scrutiny. These
cases, unlike Chimel and Gant, are on point with Wurie's case, and
we are not free to disregard them in favor of the principles
enunciated in Gant. As an inferior court, we are cautioned against
"conclud[ing] [that] more recent cases have, by implication,
overruled an earlier precedent. . . . [I]f a precedent of this
Court has direct application in a case, yet appears to rest on
reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to
this Court the prerogative of overruling its own decisions."
Agostini v. Felton, 521 U.S. 203, 237 (1997) (internal quotation
marks and alterations omitted).
In Robinson, the Supreme Court drew a sharp distinction
between two types of searches pursuant to an arrest: searches of
the arrestee and searches of the area within his control. "The
validity of the search of a person incident to a lawful arrest has
been regarded as settled from its first enunciation, and has
remained virtually unchallenged . . . . Throughout the series of
cases in which the Court has addressed the second [type of search,]
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no doubt has been expressed as to the unqualified authority of the
arresting authority to search the person of the arrestee."
Robinson, 414 U.S. at 224-25. The Supreme Court did state that the
basis of this authority is "the need to disarm and to discover
evidence," id. at 235, but in the next sentence clarified that "[a]
custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion
being lawful, a search incident to the arrest requires no
additional justification," id.
Indeed, the Court could not rely on a Chimel
justification in Robinson, as the arresting officer conceded that
he "did not in fact believe that the object in [Robinson]'s coat
pocket was a weapon" and that he gave no thought to the destruction
of evidence either. Id. at 251 (Marshall, J., dissenting) (quoting
the arresting officer's testimony: "I didn't think about what I
was looking for. I just searched him."). Robinson may not have
rejected Chimel in the context of searches of an arrestee and items
on the arrestee, but it did establish that these searches differ
from other types of searches incident to arrest.
The Supreme Court reiterated Robinson's holding in United
States v. Edwards, 415 U.S. 800 (1974), in which the Court upheld
the search and seizure of an arrestee's clothing ten hours after he
was arrested. While most of the analysis focused on the timing of
the search, the opinion assumed that law enforcement could "tak[e]
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from [the arrestee] the effects in his immediate possession that
constituted evidence of crime. This was and is a normal incident
of a custodial arrest . . . ." Id. at 805; see also id. at 803
("[B]oth the person and the property in his immediate possession
may be searched at the station house after the arrest has occurred
. . . ."). Once again, the Supreme Court was unconcerned with the
existence or nonexistence of Chimel rationales. The opinion barely
discussed them, and the government did not seek to prove that they
were present. Id. at 811 n.3 (Stewart, J., dissenting) ("No claim
is made that the police feared that Edwards either possessed a
weapon or was planning to destroy the paint chips on his clothing.
Indeed, the Government has not even suggested that he was aware of
the presence of the paint chips on his clothing.").
Even in Chadwick, where the Supreme Court did require the
police to obtain a warrant for a category of searches, it continued
to treat the search of an arrestee and items immediately associated
with him as independently justified by "reduced expectations of
privacy caused by the arrest." Chadwick, 433 U.S. at 16 n.10.
Thus, the holding in Chadwick applied only to "luggage or other
personal property not immediately associated with the person of the
arrestee." Id. at 15 (emphasis added). These cases, taken
together, establish that items immediately associated with the
arrestee –- as a category –- may be searched without any Chimel
justification. The majority seeks a bright-line rule to govern
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cell phone searches, but denies the fact that such a rule –-
covering all items on the arrestee's person –- already exists.
But even if searches of items on an arrestee required
Chimel justifications, I cannot see why cell phones fail to meet
this standard if wallets, cigarette packages, address books,
briefcases, and purses do. The attempt is made to distinguish cell
phones from these other items, but those distinctions do not hold
up under scrutiny.
One argument is that these other items, unlike cell
phones, all theoretically could contain "destructible" evidence,
which justifies examining them. But the evidence in a cell phone
is just as destructible as the evidence in a wallet: with the
press of a few buttons, accomplished even remotely, cell phones can
wipe themselves clean of data. Any claim that the information is
not destructible strikes me as simply wrong.16 Perhaps what is
meant is that the cell phone data is no longer destructible once it
is within the exclusive control of law enforcement officers. But
even accepting that the likelihood of destruction is reduced to
almost zero once the officers are in control of a cell phone, this
16
The term "destructible" evidence is perhaps intended to mean
"physical" or "tangible" evidence. That distinction does not fly,
for two reasons. First, just because evidence is intangible does
not make it indestructible. As noted, an arrestee can delete data
just as easily as he can discard drugs. Second, any distinction
based on the difference between tangible and intangible evidence
ignores the fact that we have upheld the warrantless search of
intangible information during a custodial arrest. United States v.
Sheehan, 583 F.2d 30, 31 (1st Cir. 1978).
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is equally true of cigarette packages, wallets, address books, and
briefcases. Drugs do not disappear into thin air; weapons do not
flee of their own accord. If that is the basis for the reasoning,
then a warrant should be required before searching any object
within the exclusive control of the police. I do not think that
the majority is arguing for this rule, but I cannot see any other
outcome under its analysis. Ironically, cell phones arguably pose
a greater Chimel risk than most other items because, unlike
cigarette packages or wallets, the evidence contained in cell
phones remains destructible even after the police have assumed
exclusive control of the phone via remote wiping.17
Another argument is that because cell phone searches are
not "self-limiting," they always require a warrant. The majority
does not precisely define the term "self-limiting," but I gather
that it refers to the danger that cell phones, because of their
vast storage capabilities, are susceptible to "general, evidence-
gathering searches." Supra at 21 (citing Thornton v. United
States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)). As an
initial matter, this has never been the focus of Supreme Court
17
It is also half-heartedly suggested that containers that
hold physical objects, unlike cell phones, pose a risk to officer
safety. "[T]he officer who conducted the search in Robinson had no
idea what he might find in the cigarette pack, which therefore
posed a safety risk." Supra at 23. I find it hard to believe that
a reasonable police officer is more justified in remaining on guard
against booby-trapped cigarette packs and wallets in the line of
duty, than she is against sophisticated electronic devices.
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cases discussing the search incident to arrest exception for items
immediately associated with the arrestee.18 Thus, I am reluctant
to give it much weight in assessing Wurie's constitutional claim.
Nonetheless, if we are concerned that police officers
will exceed the limits of constitutional behavior while searching
cell phones, then we should define those limits so that police can
perform their job both effectively and constitutionally. Instead,
the majority has lumped all cell phone searches together, even
while perhaps acknowledging that its broad rule may prohibit some
otherwise constitutional searches. Supra at 28 ("Thus, while the
search of Wurie's call log was less invasive than a search of text
messages, emails, or photographs, it is necessary for all
warrantless cell phone data searches to be governed by the same
rule."). But this need not be the solution. We can draw the
appropriate line for cell phone searches, just as we have done in
other contexts. For instance, a body search, like a cell phone
search, is not inherently self-limiting. A frisk can lead to a
18
For instance, in Robinson, the police conducted their search
pursuant to a standard operating procedure of the police
department, which trained officers to carry out a full field search
after any arrest. United States v. Robinson, 414 U.S. 218, 221 n.2
(1973). That entailed "completely search[ing] the individual and
inspect[ing] areas such as behind the collar, underneath the dollar
[sic], the waistband of the trousers, the cuffs, the socks and
shoes . . . [as well as] examin[ing] the contents of all the
pockets' [sic] of the arrestee . . . ." Id. (internal quotation
marks omitted). Given that Robinson was arrested for a traffic
violation, and that the arresting officer conceded that he felt no
personal risk during the arrest, the only conceivable purpose for
this search was to gather general evidence.
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strip search, which can lead to a cavity search, which can lead to
x-ray scanning. But this parade of horribles has not come to pass
because we have established the constitutional line, and
conscientious law enforcement officers have largely adhered to it.
See Swain v. Spinney, 117 F.3d 1, 5-9 (1st Cir. 1997) (holding that
police officers may not conduct a strip search of an arrestee
incident to the arrest); see also Roberts v. Rhode Island, 239 F.3d
107, 113 (1st Cir. 2001) (holding that indiscriminate strip
searches of misdemeanant arrestees during administrative processing
at a detention facility violated the Fourth Amendment). The
majority has instead chosen to ignore this option in favor of a
rule that sweeps too far.
Still, I share many of the majority's concerns about the
privacy interests at stake in cell phone searches. While the
warrantless search of Wurie's phone fits within one of our
"specifically established and well-delineated exceptions," United
States v. Camacho, 661 F.3d 718, 724 (1st Cir. 2011) (citations
omitted) (internal quotation marks omitted), due to the rapid
technological development of cell phones and their increasing
prevalence in society, cell phone searches do pose a risk of
depriving arrestees of their protection against unlawful searches
and seizures. There must be an outer limit to their legality.
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In Flores-Lopez, Judge Posner suggested that courts
should balance the need to search a cell phone against the privacy
interests at stake.
[E]ven when the risk either to the police officers or to
the existence of the evidence is negligible, the search
is allowed, provided it's no more invasive than, say, a
frisk, or the search of a conventional container, such as
Robinson's cigarette pack, in which heroin was found. If
instead of a frisk it's a strip search, the risk to the
officers' safety or to the preservation of evidence of
crime must be greater to justify the search.
Flores-Lopez, 670 F.3d at 809 (citations omitted). I believe that
cell phone searches should follow this formula. That is not to say
that the police must prove a risk to officer safety or destruction
of evidence in every case. There is, inherent in every custodial
arrest, some minimal risk to officer safety and destruction of
evidence. Moreover, Chadwick states that the arrest itself
diminishes the arrestee's privacy rights over items "immediately
associated" with the arrestee. Chadwick, 433 U.S. at 15. But the
invasion of the arrestee's privacy should be proportional to the
justification for the warrantless search.
This approach respects "the Fourth Amendment's general
proscription against unreasonable searches and seizures." Edwards,
415 U.S. at 808 n.9 (citations omitted) (internal quotation marks
omitted). It is also consistent with the core reasonable limit
that has been acknowledged in Robinson, which does not permit
"extreme or patently abusive" searches, Robinson, 414 U.S. at 236,
and its offspring, see, e.g., Swain, 117 F.3d at 5-9. The Supreme
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Court's recent opinion in Missouri v. McNeely, 133 S. Ct. 1552
(2013), shows that the reasonableness inquiry remains a touchstone
of Fourth Amendment analysis. The Court held that, in the context
of warrantless blood tests of drunk drivers, courts had to look to
"the totality of the circumstances" to determine whether police
officers' reliance on the exigency exception was reasonable. Id.
at 1558-63.
Similarly, while Robinson's principles generally
authorize cell phone searches, and certainly encompass the search
in this case, there are reasonable limits to Robinson that we
should not hesitate to enforce, especially in light of a cell
phone's unique technological capabilities, for "[i]t would be
foolish to contend that the degree of privacy secured to citizens
by the Fourth Amendment has been entirely unaffected by the advance
of technology." Kyllo v. United States, 533 U.S. 27, 33-34 (2001).
I find helpful the analysis in United States v.
Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc). In that case,
the Ninth Circuit determined whether a warrantless forensic
examination of a laptop computer during a border search violated
the Fourth Amendment. The court conducted a reasonableness
analysis, balancing the privacy interests of the individual against
the sovereign's interests in policing its borders. Id. at 960. It
stated that, had the search only involved "turn[ing] on the devices
and open[ing] and view[ing] image files . . . we would be inclined
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to conclude it was reasonable." Id. at 960-61. However, the
invasive nature of the forensics examination, which included
restoring previously deleted files, as well as "the uniquely
sensitive nature of data on electronic devices," id. at 966,
convinced the court that the forensics examination was an
unreasonable border search absent a showing of reasonable
suspicion, id. at 968.
A similar reasonableness analysis would restrain certain
types of cell phone searches under Robinson. The inherent risks in
a custodial arrest, along with the reduced privacy expectations of
the arrestee, must be balanced against the wide range of private
data available in a cell phone. But ultimately the question of
what constitutes an unreasonable cell phone search should be left
for another day. The majority has outlined some of the more
troubling privacy invasions that could occur during a warrantless
search. So long as they remain in the hypothetical realm, I think
it premature to draw the line. Suffice it to say that, for the
reasons I have stated, the search in this case fell on the
constitutional side of that line.19
19
If there had been a constitutional violation here, the
application of the good faith exception would present an
interesting question. Because I would find no constitutional
violation, however, I do not address the government's good faith
exception argument. But I disagree with the majority's decision
not to consider the good faith exception to the extent that it
based that decision on the government's failure to invoke the
exception before the district court. We may affirm on any basis
apparent from the record. See United States v. Sanchez, 612 F.3d.
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I respectfully dissent.
1, 4 (1st Cir. 2010). Of course, if the record is underdeveloped
because the appellee did not present the issue to the district
court, the appellee must suffer the consequences. See Giordenello
v. United States, 357 U.S. 480, 488 (1958) ("To permit the
Government to inject its new theory into the case at this stage
would unfairly deprive petitioner of an adequate opportunity to
respond. This is so because in the District Court petitioner,
being entitled to assume that the warrant constituted the only
purported justification for the arrest, had no reason to . . .
adduce evidence of his own to rebut the contentions that the
Government makes here for the first time.").
Such is not the case here. The good faith exception is merely
an extension of the government's main argument that this search
complied with existing law. The factual record appears
sufficiently developed to allow our consideration of this argument,
and the government, by raising it in its brief on appeal, gave
Wurie the opportunity to respond in his reply brief. Thus, I would
not bypass this argument merely because the government first raised
it on appeal. See Jordan v. U.S. Dep't of Justice, 668 F.3d 1188,
1200 (10th Cir. 2011) (holding that an appellate court may affirm
on an alternate ground "provided that the alternate ground is
within our power to formulate and the opposing party has had a fair
chance to address it") (citations omitted) (internal quotation
marks and alterations omitted).
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