First Circuit Prohibits Warrantless Search of Cellular Phones In United States v. Wurie, 1 a police officer, while performing routine surveillance, observed what he believed was an illegal drug transaction between Fred Wade and defendant Brima Wurie. 2 After brief questioning about the drug transaction by two officers, Wade admitted to buying the drugs from B. 3 The officers then notified a third officer, who was following Wurie in his car, and that officer arrested Wurie for distributing crack cocaine. 4 At the police station, officers took, among other things, two of the defendant s cellular phones; one of the phones repeatedly received calls from a number identified by the phone as my house, which could be seen in plain view by the officers. 5 The officers then opened the phone, revealing a wallpaper of a young woman holding a baby, and pressed a button to access the call log on the defendant s cellular phone, which, in turn, revealed the specific phone number labeled as my house. 6 The officers suspected that the defendant was lying about his address and involvement with the sale of drugs, so they researched the address associated with the phone number labeled as my house and went to that location. They arrived at an apartment and saw the young woman and baby that were pictured on the wallpaper of the cellular phone. 7 Officers eventually entered the apartment in an attempt to freeze it while they acquired a warrant, which ultimately led to the seizure of drugs, guns, and money. 8 Wurie was charged with possession of crack cocaine with intent to distribute, distribution of crack cocaine within 1,000 feet of a school, and being a felon in possession of a firearm and ammunition. 9 Wurie filed a motion to suppress the evidence obtained as a result of the warrantless search of his cellular phone. The district court denied the defendant s request, however, and the jury subsequently found Wurie guilty on all three counts. 10 Wurie appealed the lower court s decision, contending that the warrantless search of his cellular 1. 728 F.3d 1 (1st Cir. 2013), cert. granted, 2013 WL 4402108 (U.S. Jan. 17, 2014) (No. 13-212). 2. Id. at 1. 3. Id. 4. Id. at 2. 5. Wurie, 728 F.3d at 2. 6. Id. 7. Id. 8. Id. 9. See United States v. Wurie, 612 F. Supp. 2d 104, 105 (D. Mass. 2009), rev d, 728 F.3d 1 (1st Cir. 2013), cert. granted, 2013 WL 4402108 (U.S. Jan. 17, 2014) (No. 13-212). 10. Wurie, 728 F.2d at 2.
2014] CASE NOTE 13 phone violated his Fourth Amendment rights because the search conducted by the officers unjustifiably intruded upon his right to privacy. 11 The Fourth Amendment protects individuals from unreasonable searches and seizures. 12 Opposition to the British search and seizure methods inspired the Amendment; it served to protect the privacy rights of citizens against the discretionary powers employed during the colonial period. 13 Today, courts have continuously held that warrantless searches are per se unreasonable, unless one of the few exceptions applies. 14 The Supreme Court carved out one of these exceptions in Chimel v. California, 15 holding that a search-incident-toa-lawful-arrest 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. 16 The Court affirmed this principle in United States v. Robinson, 17 holding that a warrantless search of a cigarette package on the defendant was valid and did not violate his Fourth Amendment rights. 18 The underlying policy justifications for this exception remained the same: officer safety and the preservation of evidence. 19 The warrantless search-incident-to-lawful-arrest exception has been applied to most, if not all, of the objects that can be found on one s person. 20 In New 11. See id. at 6-13. 12. See U.S. CONST. amend. IV (limiting government s power to conduct reasonable searches and seizures); Ronald F. Wright, Note, The Civil and Criminal Methodologies of the Fourth Amendment, 93 YALE L.J. 1127, 1128-29 (1984) (evaluating searches and seizures under reasonableness test). 13. See Payton v. New York, 445 U.S. 573, 582 n.17, 591-92 (1980) (claiming framers intended Fourth Amendment to protect against indiscriminate general warrants); see also Gouled v. United States, 255 U.S. 298, 304 (1921) (claiming personal liberty, personal security, and private property as essence of Constitution); JACOB W. LANDYNSKI, SEARCH AND SEIZURE AND THE SUPREME COURT: A STUDY IN CONSTITUTIONAL INTERPRETATION 19 (1966) (tracing Fourth Amendment development from events immediately preceding Revolutionary War); Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review, 77 B.U. L. REV. 925, 926 (1997) (claiming Fourth Amendment s roots arose from American colonists disapproval of British law enforcement practices). 14. See Arizona v. Gant, 556 U.S. 332, 338 (2009) (claiming warrantless search unreasonable, unless exception present); Katz v. United States, 389 U.S. 347, 357 (1967) (ruling searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well-delineated exceptions. ). Exceptions include the search incident-to-arrest exception and exigent-circumstances exception, among others. See Gant, 556 U.S. 332 (2009) (discussing search-incident-to- lawful-arrest exception); Chambers v. Maroney, 399 U.S. 42, 51, 90 (1970) (holding [o]nly in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search ). 15. 395 U.S. 752 (2009). 16. Id. at 763 (justifying search-incident-to-arrest exception for reasons of officer safety, preservation of evidence). 17. 414 U.S. 218 (1973). 18. See id. at 235-37. But see United States v. Chadwick, 433 U.S. 1, 14 (1977) (announcing search incident to lawful arrest, by itself, not enough to overcome constitutional rights), abrogated by California v. Acevedo, 500 U.S. 565 (1991). 19. See Robinson, 414 U.S. at 226. 20. See Chelsea Oxton, Note, The Search Incident to Arrest Exception Plays Catch Up: Why Police May
14 SUFFOLK UNIVERSITY LAW REVIEW ONLINE [Vol. II:12 York v. Belton, 21 the Supreme Court held that police may search a container on the arrestee s person because the lawful custodial arrest justifies the infringement of the arrestee s privacy rights. 22 The Court reasoned that a container includes any object capable of holding another object, such as luggage, boxes, or bags. 23 This definition, however, is quite broad and includes more than just objects that can hold an arrestee s personal belongings. 24 Courts are split regarding the constitutionality of warrantless searches of cellular phones incident to a lawful arrest, with a majority of decisions upholding the searches. 25 In People v. Diaz, 26 the Supreme Court of California held that, under Robinson, a cellular phone could be searched incident to a lawful arrest without any further justification; the lawful arrest justified the search. 27 In United States v. Murphy, 28 the Fourth Circuit held that the warrantless search of the defendant s cellular phone was constitutional because of the need for officers to preserve evidence. 29 The Seventh Circuit, in United States v. Flores-Lopez, 30 agreed with this position, and held that officer safety justified a warrantless search of the defendant s cellular phone. 31 Conversely, in United States v. Park, 32 a federal judge in California likened the search of a cellular phone to a Chadwick-type search; the court held that once the police gain control of the phone, they no longer have the ability to search it without a warrant, absent exigent circumstances, because the defendant is no longer in possession of the object and it is not within his immediate control. 33 Moreover, the Supreme Court of Ohio held similarly in State v. Smith, 34 deciding that a cellular phone is unlike other closed containers because of the high expectation No Longer Search Cell Phones Incident to Arrest Without a Warrant, 43 CREIGHTON L. REV. 1157, 1158 (2010) ( Under the search incident to arrest exception, police officers may search the entire person of an arrestee, including any containers found on the arrestee, incident to a lawful arrest. ). 21. 453 U.S. 454 (1981), abrogated by Davis v. United States, 131 S. Ct. 2419 (2011). 22. See id. at 460-61; see also Robinson, 414 U.S. at 235-36 (upholding warrantless search of closed cigarette package). 23. See Belton, 453 U.S. at 460 n.4 (defining container for purposes of the rule). 24. See Margaret M. Lawton, Warrantless Searches and Smartphones: Privacy in the Palm of Your Hand?, 16 U. D.C. L. REV. 89, 91, 95, 118 (2012) (stating Supreme Court has broadly defined container ); Cynthia Lee, Package Bombs, Footlockers, and Laptops: What the Disappearing Container Doctrine Can Tell Us About the Fourth Amendment, 100 J. CRIM. L. & CRIMINOLOGY 1403, 1414 (2010) (explaining Supreme Court defined container much more expansively ). 25. See Wurie, 728 F.3d at 5 (citing examples). 26. People v. Diaz, 244 P.3d 501 (Cal. 2011), cert. denied, 132 S. Ct. 94 (2011). 27. See id. at 511. But see id. at 513 (Werdegar, J., dissenting) (claiming new electronic devices not analogous to packages or containers). 28. 552 F. 3d 405 (4th Cir. 2009), cert. denied, Murphy v. United States, 556 U.S. 1196 (2009). 29. See id. at 411 (holding search-incident-to-lawful-arrest exception allows warrantless cellular phone search). 30. 670 F. 3d 803 (7th Cir. 2012). 31. Id. at 806-07. 32. No. CR 05 375 SI., 2007 WL 1521573, at *1 (N.D. Cal. May 23, 2007). 33. See id. at *1. 34. 920 N.E.2d 949 (Ohio 2009), cert. denied, Ohio v. Smith, 131 S. Ct. 102 (2010).
2014] CASE NOTE 15 of privacy in one s phone. 35 Lastly, the Florida Supreme Court in Smallwood v. State 36 utilized the approach in Arizona v. Gant and declared that once a cellular phone is removed, there is neither a need for officer safety nor a chance that the defendant can destroy the evidence. 37 Applying these factors to Wurie, the First Circuit reversed the district court s decision and held that a warrantless search of a cellular phone, incident to a lawful arrest, violated Wurie s Fourth Amendment rights. 38 The court determined that a cellular phone was unlike any other container because of its ability to hold and store highly personal information, such as addresses, photographs, videos, and messages. 39 The court wrote that the government did not prove that officers needed to search the cellular phone under either of the two underlying policy justifications of the exception officer safety and the preservation of evidence. 40 There was no officer safety justification because once officers realized the phone as well as the data inside it was not, in fact, a weapon or could harm them, officers had no reason to further inspect it. 41 There was no evidence preservation justification, according to the court, because officers could have protected the phone from outside interference without accessing it. 42 Indeed, the court reasoned that if there were a genuine threat that the phone s content could be wiped or overwritten, then the police would routinely use methods of preservation to counteract such threats. Thus, the court saw the risk of evidence destruction as only theoretical. 43 The court then recognized that the Supreme Court insists on bright-line rules in the Fourth Amendment context. 44 Based upon this, the court developed a brightline rule that warrantless searches of cellular phone data are categorically unlawful under the search-incident-to-arrest exception. 45 The creation of the Fourth Amendment was spurred by its drafters intent to create a system that protects privacy interests and personal freedom, a system that, in current times, shields citizens from general warrants and unreasonable searches and seizures. A warrantless search of a cellular phone intrudes upon 35. See id. at 955; Eunice Parker, Traffic Ticket Reasonable, Cell Phone Search Not: Applying the Search-Incident-to-Arrest Exception to the Cell Phone as Hybrid, 60 DRAKE L. REV. 429, 444 (2012). 36. 113 So. 3d 724 (Fla. 2013). 37. See id. at 735 (requiring warrant to search cellular phone after physical separation). 38. See United States v. Wurie, 728 F.3d 1, 14 (1st Cir. 2013), cert. granted, 2013 WL 4402108 (U.S. Jan. 17, 2014) (No. 13-212). 39. Id. at 8. 40. See id. at 10-11. 41. See id. at 10. 42. Wurie, 728 F.3d at 11. Methods of protecting the contents of a cellular phone include: turning off the phone and removing the battery; putting the phone in a Faraday enclosure, which shields the interior of the phone from external electromagnetic radiation; and copying the entire cellular phone s contents for the purposes of evidence preservation. See id. 43. See id. 44. Id. at 12. 45. See id.
16 SUFFOLK UNIVERSITY LAW REVIEW ONLINE [Vol. II:12 these essential civil liberties. Although capable of holding something else under the loose Belton definition of a container a cellular phone has many more capabilities and implicates unique and different privacy concerns. The Supreme Court in Belton could not have imagined the technological developments the future would bring: electronic devices are capable of containing someone s entire personal life, for example, many today hold pictures of loved ones, videos of friends and family, access to home security cameras, and private messages. As Justice Brandeis once wrote, constitutional provisions must have the capacity of adaptation to a changing world. 46 Once a cellular phone is accessed, police officers are no longer searching a container; rather, they are entering into the heart of a person s private life, areas that the founding fathers intended to protect through the Fourth Amendment. With the rapid change and evolution of technology, allowing warrantless searches of cellular phones today could lead to similar searches of future devices with capabilities and privacy concerns far beyond today s cellular phones. A line must be drawn somewhere, and the court correctly drew it at the warrantless search of a cellular phone under these factual circumstances. The alternative to the First Circuit s decision in Wurie allowing courts to apply multi-factor, fact-specific tests to determine the validity of such searches would be very difficult for police officers to apply in the field. The First Circuit s approach not only comports with the underlying policy rationales of the search-incident-to-lawful-arrest exception, it also provides easy to follow guidelines for the police. First, when neither officer safety nor evidence preservation is an issue, officers must obtain a warrant under the search-incident-to-arrest exception. Second, if the police have probable cause that a cellular phone contains evidence of a crime and have an immediate and compelling need to act quickly and are unable to obtain a warrant, then the exigent circumstances exception is applicable and they can proceed with the warrantless search. Gant and its progeny have stated these principles time and time again, and there is no need to depart from such a rule, especially as it applies to highly personal and intimate information containers, to wit, cellular phones. The categorical approach leaves officers with a readily administrable rule to get a warrant first and search later. People s privacy interests vastly outweigh this undemanding step. Thus, the First Circuit s holding in Wurie was correct, and courts should continue to require that police officers go through the requisite legal strictures in order to break the seal of privacy. A cellular phone is not analogous to a container. People are increasingly reliant on cellular phones to communicate, research, and plan their lives, and access to cellular phones contents paints a subjective picture of our life. 47 46. Olmstead v. United States, 277 U.S. 438, 472 (1928) (Brandeis, J., dissenting). 47. Bryan A. Stillwagon, Note, Bringing an End to Warrantless Cell Phone Searches, 42 GA. L. REV. 1165, 1201 (2008) (internal citation and quotation marks omitted).
2014] CASE NOTE 17 Because the privacy interests people have in the containers and cellular phones they carry are so different, this is a case where the law has to [adapt] to a changing world. 48 The Wurie case will by no means end the debate on warrantless searches of cellular phones. In fact, the government filed a petition for writ of certiorari, and the Supreme Court recently granted certiorari on January 17, 2014. 49 Currently, police officers have to resolve conflicting constitutional rulings based on the region in which they are policing. Until the Supreme Court resolves these issues, courts will continue to decide these types of Fourth Amendment cases without uniformity. Anthony J. Gambale 48. Olmstead, 277 U.S. at 472 (Brandeis, J., dissenting). 49. See United States v. Wurie, 2013 WL 4402108 (U.S., Jan. 17, 2014) (granting certiorari); Petition for Writ of Certiorari, United States v. Wurie, 728 F.3d 1 (1st Cir. 2013) (No. 13-212), 2013 WL 4404658, at *10-11.