The Obama administration, taking the advice of two judges to rush the issue to the Supreme Court, has moved quickly to ask the Justices to rule that police are free to look through the contents of a private cellphone they take from an individual they arrest, and to do so without a judge’s approval.

About two weeks after the First Circuit Court voted to leave intact a ruling that such searches are unconstitutional if police do not have a search warrant, the government on Thursday asked the Supreme Court to overturn that decision.  The government could have taken three months to begin an appeal.  The case is United States v. Wurie (docket 13-212).  An earlier post on the constitutional controversy can be read here.

The key to the government’s argument is that police have long had the authority, without a warrant, to search items that are found on a person whom they arrest.  That has been “a bright-line rule,” the petition said, that as long as the arrest was valid, items that person was carrying should be open to search by officers.

Creating exceptions to that rule, on an “item-by-item” basis, would undercut that rule and complicate police enforcement activity.  “No sound rule justifies excluding cellphones, the contents of which are far more susceptible to destruction than most other evidence,” the petition argued.   There are no exceptions for wallets, calendars, address books, pagers, and pocket diaries, and none should be created for hand-held telephones, the government contended.

The issue, however, has divided lower courts, the petition noted.  In fact, the First Circuit Court ruling requiring a warrant for officers to search an arrestee’s cellphone conflicts directly with an opposite ruling by the highest court of Massachusetts.  Massachusetts, of course, is in the geographic area of the First Circuit, so the petition said that the conflict between the two courts in that area leaves police with “the task of making sense” of their legal duty.

The petition added: “Particularly given the ubiquity of cellphone use by drug traffickers and other serious offenders, and the important law-enforcement consequences of unsettling search-incident-to-arrest doctrine, the question presented now ‘requires an authoritative answer from the Supreme Court,'” the petition said, quoting a judge on the First Circuit Court.

The same issue raised in the case is already on file at the Court, in Riley v. California (docket 12-132).  With the widening conflict among lower courts, review of the issue by the Justices is highly likely, during the new Term that opens in October.   The new government petition mentions the Riley case in a final footnote, but implied that the Wurie case would present a better test of the constitutional issues.  (A reader has suggested that the government may have rushed to file its own appeal in order to give it an added chance to be considered in competition with the Riley case.)

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, U.S. appeals on cellphone privacy, SCOTUSblog (Aug. 16, 2013, 4:37 PM), http://www.scotusblog.com/2013/08/u-s-appeals-on-cellphone-privacy/